Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur: (a) the Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2; (d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9; (e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice; (f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated; (g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000; (h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing; (i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof; (j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; (k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000; (l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; (m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents; (n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; (o) any Change of Control shall occur; (p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 3 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, within two (2) Business Days after the day on which the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.8, 9 or 10;
(d) the Borrower or any of the Borrowers or any of their respective Subsidiaries other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other subclauses Transaction Parties in this Credit Agreement or any of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers other Transaction Parties shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation obligations for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is boundbound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of the other Transaction Parties or of any substantial part of its assets, (ii) the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to it the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of the other Transaction Parties and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, other Transaction Parties bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one or more uninsured or unbonded days, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of the other Transaction Parties that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersother Transaction Parties party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event reasonably would (A) could be expected to result in liability of any of the Borrowers to pay money Borrower to the PBGC or such Guaranteed Pension the Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court court of a trustee to administer such Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any Change of Control the other Transaction Parties shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) an Event any person or group of Default under any persons (within the meaning of Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clar▇ (on a fully diluted basis); then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iss.ss.13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Corp), Revolving Credit Agreement (Hadco Acquisition Corp Ii)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of any of the Loans when after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans Loans, or any other fees or sums due hereunder or under any of the other Loan Documents, within five ten (510) days of the date that after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower or the Trust shall fail to comply with the any covenant contained in §9.1 9, and such failure shall continue uncured for thirty (30) days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided Agent; provided, however, that in the event that Borrower or the Trust shall fail to comply with §9.5, then the same shall not constitute a Default hereunder in the event that Borrower prepays the Loans or provides additional Unencumbered Borrowing Base Property in accordance with the terms of this Agreement in an amount sufficient such that Borrower and the Trust would be fully in compliance with the covenant set forth in §3.29.5 within five (5) days of the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance, (ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of written notice of such noncompliance from Agent; and provided further, that during any period in which Borrower or the Trust shall fail to be in compliance of any covenant in §9.5, then the Banks shall have no obligation to make Loans;
(d) the Borrower or any of the Borrowers Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereofthereof shall have been given to the Borrower by the Agent; provided , and however , that in the case event that such failure shall be a failure to comply with the terms of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice§8.7(b), then the Borrower shall have be afforded a period of one (1) fiscal quarter to cure such additional time as is reasonably necessary failure provided that the Distribution which caused such failure was historically consistent with prior dividends; provided , further that no cure period shall be available with respect to effect such cure, but in no event in excess a failure to comply with the terms of ninety (90§7.5(a) days from Borrower’s receipt of Lender’s original noticeor §8.4;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, any Guarantor or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including, without limitation, any Derivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and (including, without limitation, any Derivatives Contract)for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment or purchase thereof; , provided that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $25,000,00010,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(hg) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, any Guarantor or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower, any Guarantor or REIT or adjudicating any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceeds in the aggregate, exceed aggregate $25,000,00010,000,000.00;
(lk) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower, any Guarantor, any of the Borrowerstheir respective Subsidiaries or any of their respective holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Trust or any of the Borrowers shall occur their respective Subsidiaries or any sale, transfer or other disposition of the assets of the Borrower, the Trust or any of the Borrowers shall occur their respective Subsidiaries other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower or any Guarantor or any of their respective Subsidiaries or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) the Borrower, any Guarantor, any of their respective Subsidiaries or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries, including the Real Estate;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, any Guarantor or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; Plan or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(op) any a Change of Control shall occur;
(pq) an ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall cease to be active on a daily basis in the management of the Trust and the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default under (as defined in any of the other Loan Documents Documents) shall occur; or
(s) The Borrower and the Guarantor and any of their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require a redemption, retirement, prepayment, purchase or defeasance thereof; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower (in addition to the rights afforded under §12.3) declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in Borrower. In the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers shall fail to pay any interest on the Loans within five (5) days Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.ss.6, 8.1, 8.2, 8.4, 8.5.1., 8.5.3, 8.5.4, 8.7, 8.9, 8.12, 8.14, 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
13.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Company by the Agent;
(e) any representation or warranty of any Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account obligation in excess of any obligation $1,000,000 for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower or any of its Subsidiaries or of any substantial part of the assets of any Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it any Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, its Subsidiaries and any such Person Borrower or any of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower or any of its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any Borrower or any Subsidiary of such Person Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent any Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against such Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ol) any Change Borrower or any of Control its Subsidiaries shall occurbe enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(pm) an Event of Default under there shall occur any material damage to, or loss, theft or destruction of, any of the property of any Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other Loan Documents shall occur; thencasualty, and upon which in any such Event of Defaultcase causes, for more than fifteen (15) consecutive days, the Agent may, and upon the request cessation or substantial curtailment of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice revenue producing activities at any facility of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) Borrower or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or Subsidiaries if such excess no longer existsevent or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of such Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Borrower or any of its Subsidiaries if such proceeds deposited by Borrowers will be released loss, suspension, revocation or failure to Borrowers.renew would have a material adverse effect on the business or financial condition of such Borrower or such Subsidiary;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Genrad Inc), Revolving Credit Agreement (Genrad Inc)
Events of Default and Acceleration. If any of the following events (subject to §12.2, “Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether by mandatory prepayment, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether by mandatory prepayment, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.29;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.l(f), involve involves (i) any Recourse Indebtedness singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000, or (ii) obligations for Non-Recourse Indebtedness singly or in the aggregate totaling in excess of $100,000,000.00;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, monitor, receiver, receiver-manager, or receiver similar official for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law Insolvency Law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing; provided that the events described in this §12.1(g) as to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator liquidator, monitor, receiver, receiver-manager, or receiver similar official of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law Insolvency Law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof; provided that the events described in this §12.1(h) as to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(ji) a decree or order is entered appointing a trustee, custodian, liquidator liquidator, receiver, monitor, receiver-manager, or receiver similar official for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws any Insolvency Law; provided that the events described in this §12.1(i) as now to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or hereafter constitutedSubsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00035,000,000.00 per occurrence or during any twelve (12) month period;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement, or to contest or challenge the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents[reserved];
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 35,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) [reserved];
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document;
(p) [reserved];
(q) [reserved];
(r) REIT shall fail to comply at any time with all requirements and Applicable Laws necessary to maintain REIT Status and shall continue to receive REIT Status;
(s) REIT shall fail to comply, in any material respect, with any SEC reporting requirements; or
(t) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallMajority Lenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(h) or 12.1(i) shall occur with respect to the Borrower, REIT or §12.1(j)any Subsidiary Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Revolving Credit Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Events of Default and Acceleration. If any of the following events Of Maturity: PAYEE ---------------------------------------------- MAY, WITHOUT NOTICE OR DEMAND (“Events of Default” or, if the giving of notice except as otherwise required by statute or otherwise specifically provided in this Note or the lapse of time or both is requiredPledge Agreement), then, prior to such notice or lapse of time, “Defaults”) shall occurACCELERATE THE MATURITY OF THIS NOTE AND DECLARE THE ENTIRE UNPAID PRINCIPAL BALANCE AT ONCE DUE AND PAYABLE IF:
(ai) There is default by Issuer in the Borrowers shall fail to pay performance of any principal of the Loans when the same shall become due and payablecovenant, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payablecondition, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2this Note or the Pledge Agreement, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for including any instrument securing the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses payment of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents)Note, and such failure shall continue default continues for a period of thirty (30) days after Borrower receives from Agent following written notice thereof, and in the case of a default that cannot be cured within to Issuer specifying such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticedefault;
(fii) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make if Issuer makes an assignment for the benefit of creditors, or admit in writing its general inability to pay petitions or generally fail to pay its debts as they mature or become due, or shall petition or apply applies for the appointment of a trustee liquidator, receiver or other custodian, liquidator custodian (or receiver for similar official) of it or of any substantial part of its assets, (ii) shall commence or if Issuer commences any proceeding or case or other proceeding relating to it under the Bankruptcy Code or any other bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take takes any action to authorize or in furtherance of any of the foregoing;; or
(iiii) a if any petition or application shall be of the type described in subparagraph (c) immediately above is filed for the appointment of a trustee or other custodianif any such proceeding or case described in subparagraph (c) is commenced against Issuer and is not dismissed within sixty (60) days, or if Issuer indicates its approval thereof, consents thereto or acquiesces therein, or if an order is entered appointing any such liquidator or receiver or custodian (or similar official), or adjudicating Issuer bankrupt or insolvent, or approving a petition in any such proceeding, or if a decree or order for relief is entered in respect of any of Issuer in an involuntary case under the Borrowers or REIT Bankruptcy Code or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Restricted Stock Agreement (Encore Medical Corp), Restricted Stock Agreement (Encore Medical Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers any Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers any Borrower shall fail to pay any interest on the Loans within five (5) days of the date that or fees or other amounts payable hereunder when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty five (305) day cure period provided in the preamble to Article 9 days after written notice thereof shall have of such failure has been given to a Borrower by the Borrowers by Agent as provided Administrative Agent;
(c) AMERICAS/2023306744.4
(d) any Borrower shall fail to perform or observe any of its covenants contained in the preamble to Article 9Sections 6.3.1, 6.4.1, 7 or 8;
(e) any Borrower or any of the Borrowers its Subsidiaries shall fail to perform or observe any other term, covenant covenant, or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 11) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereofof such failure has been given to such Borrower by the Administrative Agent, provided, that a failure to perform or observe the terms, covenants and agreements set forth in the case of a default Section 6.2, Section 6.3.3, Section 6.7 or Section 6.9.1 that cannot be cured within such thirty continues for more than ten (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (9010) days (regardless of whether notice of such failure is given to such Borrower’s receipt ) shall constitute an Event of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeDefault hereunder;
(f) any material representation or warranty made by or on behalf of the Borrowers any Borrower or any of their respective its Subsidiaries in this Agreement or Credit Agreement, any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit RequestDocuments, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(g) failure to make a payment of principal or interest, or the occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries, having a principal amount (or (x) in the Borrowers shall fail case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when due the date of determination as determined in accordance with generally accepted accounting principles or (includingy) in the case of a Swap Contract, without limitationthe Swap Termination Value or (z) in the case of a Synthetic Lease Obligation, at maturitythe amount of Attributable Indebtedness with respect thereto), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is boundone case, evidencing of $100,000,000 or securing any obligation for borrowed money or credit received or other Indebtedness more, and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to performmake a payment of principal or interest, together with other failures to perform as described in §12.1(g)or a default, involve singly or in the aggregate obligations for borrowed money or credit received event of default, or other event shall continue for such period of time as would entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or Synthetic Lease Obligation (with or without notice) to accelerate such Indebtedness totaling in excess of $25,000,000or terminate such Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(h) any of the Borrowers Loan Documents shall be cancelled, terminated, revoked, or REITrescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent, or approval of the Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(i) the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver for it of the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary or of any substantial part of its assetsthe assets of the Company, Alliance Distributors, (iij) 58 AMERICAS/2023306744.4 the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary, or shall commence any case or other proceeding Proceeding relating to it the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding such Proceeding shall be commenced against the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, Material Subsidiary and any of such Person parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for fifteen (15) calendar days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 99.2 -§9.12;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other (i) Recourse Indebtedness totaling in excess of $25,000,00010,000,000.00 or (ii) Non-Recourse Indebtedness in excess of $50,000,000.00 individually or in excess of $75,000,000.00 in the aggregate;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fifteen (6015) days during any calendar year, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent (x) the Borrower or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,00025,000,000.00 in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary Guarantor that, either individually or in the aggregate, exceed $25,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
; (n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Events of Default and Acceleration. If any of the following events ---------------------------------- (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 (S)(S)9.1, 9.2, 9.4, 9.5.1, 9.6, 9.9, and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.29.12 - 9.17, (S)10 or (S)11;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this (S)14.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, if any good faith representation made by the Borrower on the -------- Closing Date as to Pivotpoint, Inc. shall prove to have been false in any material respect on such date, such an event shall not constitute a default hereunder if all consequences, liabilities and claims associated with such false representation are in an amount which does not exceed $10,000,000 in the aggregate;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount in excess of $250,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an aggregate amount in excess of $250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of its Subsidiaries (other than a Non- Material Subsidiary unless the Borrowers Borrower or REIT, any other Subsidiary has been adversely effected by the occurrence of such event (isuch a Non-Material Subsidiary causing no adverse effect being hereinafter referred to as a "Deminimis Subsidiary")) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) or of any substantial part of the assets of the Borrower or any of its assets, Subsidiaries (iiother than a Deminimis Subsidiary) or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries (other than a Deminimis Subsidiary) and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries (other than a Deminimis Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries (other than a Deminimis Subsidiary) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary (other than a Deminimis Subsidiary) of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries (other than a Deminimis Subsidiary) that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of (S)302(f)(1) of ERISA), provided that the Agent determines -------- in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) the Borrower or any Change of Control its Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(p) the Borrower shall at any time fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is a direct Subsidiary (other than any Subsidiary formed in connection with Mapics Business Solutions), and any Guarantor shall fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is its direct Subsidiary, provided, however, to the extent the Borrower or any Guarantor, as the case -------- ------- may be, owns less than one hundred percent (100%) of the capital stock of any Guarantor at the time such Subsidiary becomes a Guarantor hereunder, then it shall only constitute an Event of Default under if the Borrower or the Guarantor, as the case may be, shall at any time own less than one hundred percent (100%) of the other Loan Documents amount of the capital stock (in terms of percentages) of such Subsidiary than the Borrower or Guarantor, as the case may be, owned on the date such Person became a Subsidiary of the Borrower or such Guarantor, or any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, the first day on which the majority of the directors of the Borrower are not Continuing Directors; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event -------- of Default specified in §12.1(h), §12.1(i(S)(S)14.1(g) or §12.1(j14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for fifteen (15) calendar days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other (i) Recourse Indebtedness totaling in excess of $25,000,00010,000,000, or (ii) Non-Recourse Indebtedness in excess of $50,000,000;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fifteen (6015) days during any calendar year, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent (x) the Borrower or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,00010,000,000.00 in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary Guarantor that, either individually or in the aggregate, exceed $10,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Majority Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any of the Unencumbered Pool Properties;
(p) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) [reserved];
(r) [reserved];
(s) [reserved];
(t) [reserved];
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not an Unencumbered Pool Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Control shall occur;; or
(py) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallMajority Lenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the thirty maturity of the Obligations);
(30c) day cure period provided Borrower or any other Loan Party shall fail to comply with any covenant contained in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article §7.4, §7.9, §8 or §9;
(ed) Borrower or any of the Borrowers other Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), ; and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeBorrower by Agent;
(fe) any material Any representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries Loan Party in this Agreement or in any other Loan DocumentDocument to which it is a party, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(gi) Borrower or any of the Borrowers Restricted Subsidiary shall fail to pay at maturity or otherwise when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness having an aggregate principal amount outstanding of at least $100,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , including without limitation the events described in §12.1(g) shall not constitute an occurrence of any “Event of Default unless Default” (A) (as such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or term is defined in the aggregate obligations MGP/UPS Credit Facility) under the MGP/UPS Credit Facility and (B) (as such term is defined in the Senior Unsecured Convertible Note Indenture) under the Senior Unsecured Convertible Notes or the Senior Unsecured Convertible Note Indenture; or (ii) any Unrestricted Subsidiary shall fail to pay at maturity or otherwise when due, or within any applicable period of grace, any obligation for borrowed money or credit received or other Indebtedness totaling having an aggregate principal amount outstanding of at least $5,000,000, or fail to comply with any financial covenant with respect thereto, or any bankruptcy or insolvency default with respect to such Unrestricted Subsidiary shall occur under any agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof,.
(g) Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of $25,000,000;5,000,000)
(h) any of the Borrowers or REIT, (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of Borrower or any such Subsidiary or of any substantial part of its assetsthe assets of any thereof, including, without limitation, any Eligible Asset, (ii2) shall commence any case or other proceeding relating to it Borrower or any of such Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of the Borrowers or REIT $5,000,000), or any substantial part of the assets of any thereof, including, without limitation, any Eligible Asset, or a case or other proceeding shall be commenced against any Borrower or such Person Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any Borrower or such Person Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a A decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating Borrower or any such Person, Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of $5,000,000) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of Borrower or any such Person Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower or any Subsidiary Borrower of its Subsidiaries, that, either individually or with other outstanding final judgments, undischarged, against Borrower and its Restricted Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000100,000 (or against Unrestricted Subsidiaries exceeds in the aggregate $5,000,000) (to the extent not paid or covered by insurance);
(lk) If any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Party or any of the Borrowerstheir respective stockholders, partners, members or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any Any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Loan Party, or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Loan Party, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) Borrower or any of its Subsidiaries shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower included in the Collateral;
(n) with With respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event that reasonably would could be expected to result in liability of any of the Borrowers to pay money Loan Party to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any A Change of Control shall occur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(p) Any Event of Default, as defined in any of the other Loan Documents, shall occur;
(pq) an Event Any amendment to or termination of Default under a financing statement naming any Loan Party as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of any Loan Party without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other Loan Documents than Agent or Agent’s counsel (or by Borrower at Agent’s direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof; or
(r) Borrower shall occurcease to maintain its REIT Status; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.;
Appears in 2 contracts
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of any of the Loans when after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit Credit, or any other fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Documents, within ten (10) days after notice from Agentthe same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower or the Trust shall fail to comply with the any covenant contained in §9.1 9, and such failure shall continue uncured for thirty (30) days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided Agent; provided, however, that in the event that Borrower or the Trust shall fail to comply with the covenant set forth in §3.29.5, then the same shall not constitute a Default hereunder in the event that Borrower prepays the Loans or provides additional Mortgaged Property in accordance with the terms of this Agreement in an amount sufficient such that Borrower and the Trust would be fully in compliance with the covenant set forth in §9.5 within ninety (90) days of the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance, (ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of written notice of such noncompliance from Agent; provided further that within thirty (30) days of the earlier to occur of the events described in clauses (i)-(iii) above of this §12.1(c), Borrower shall deliver to Agent a description of its proposed plan to cure such noncompliance under §9.5 (although the failure to follow such plan shall not constitute an independent Default under this §12.1(c)); and provided further, that during any period in which Borrower or the Trust shall fail to be in compliance of any covenant in §9.5, then the Banks shall have no obligation to make Loans or to issue Letters of Credit;
(d) the Borrower or any of the Borrowers Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other material term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereofthereof shall have been given to the Borrower by the Agent; provided, and however, that in the case event that such failure shall be a failure to comply with the terms of a default that cannot be cured within such thirty §8.7(a) or (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original noticeb), then the Borrower shall have be afforded a period of one (1) fiscal quarter to cure such additional time as is reasonably necessary to effect failure provided that the Distribution which caused such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticefailure was historically consistent with prior dividends;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, any Guarantor or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including, without limitation, any Derivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and (including, without limitation, any Derivatives Contract)for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment or purchase thereof; , provided that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $25,000,00010,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(hg) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, any Guarantor or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower, any Guarantor or REIT or adjudicating any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceeds in the aggregate, exceed aggregate $25,000,00010,000,000.00;
(lk) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower, any Guarantor, any of the Borrowerstheir respective Subsidiaries or any of their respective holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Trust or any of the Borrowers shall occur their respective Subsidiaries or any sale, transfer or other disposition of the assets of the Borrower, the Trust or any of the Borrowers shall occur their respective Subsidiaries other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower or any Guarantor or any of their respective Subsidiaries or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) the Borrower, any Guarantor, any of their respective Subsidiaries or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries, including the Real Estate;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, any Guarantor or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; Plan or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(op) any a Change of Control shall occur;
(pq) an ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall cease to be active on a daily basis in the management of the Trust and the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default under (as defined in any of the other Loan Documents Documents) shall occur; or
(s) The Borrower and the Guarantor and any of their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require a redemption, retirement, prepayment, purchase or defeasance thereof; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower (in addition to the rights afforded under §12.3) (i) declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in Borrower, and (ii) require the event Borrower to immediately cash collateralize all outstanding Letters of any Event Credit or obtain replacement letters of Default specified in §12.1(h), §12.1(i) or §12.1(j), all credit for such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged , all in a manner satisfactory to the Issuing Bank and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other ObligationsMajority Banks, In the event the Borrower fails to deliver such cash collateral, or alternatively upon demand by Agent Agent, the Issuing Bank or the Majority Lenders Revolving Credit Banks in their absolute and sole discretion after the occurrence and during the continuance of an Event of Defaultdiscretion, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders Banks will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The , the proceeds of any such Revolving Credit Loan which will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations or Hedge Obligations and Lenders the Banks have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower. In the event of any Event of Default specified in §12.1(g), §12.1(h) or §12.1(i), all such amounts shall become immediately due and payable automatically without any requirement of presentment, demand, protest or other notice of any kind from any of the Banks or the Agent.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable (including, without limitation, under and pursuant to Section 3.2(a) and (b)) within five (5) Business Days after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans Loans, within five (5) days of the date that Business Days after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any fees or other sums due hereunder or under any of the other Loan Documents, within five (5) Business Days after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; provided, that with respect to any fees or other sums due hereunder or under any of the other Loan Documents for which an invoice has been provided by the Administrative Agent but has not been received by the Borrower, the Borrower or any of its Subsidiaries shall fail to pay such fees or other sums within five (5) Business Days after notice of such failure has been given to the Borrower by the Administrative Agent;
(d) the Borrower shall fail to comply with the covenant any of its covenants contained in §Section 8.1, the first sentence of Section 8.4.1, the first sentence of Section 8.5, Sections 9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2through 9.6 or Section 10;
(de) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 13.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries (whether in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents ) shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in an aggregate principal amount in excess of $25,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in an aggregate principal amount in excess of $25,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(h) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000;
(lk) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $25,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $25,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(om) the Borrower or any of its Subsidiaries is obligated to repurchase $25,000,000 or more of receivables of the type described in clause (g) of the definition of “Indebtedness” hereof, whether sold under a purchase facility or otherwise, or a termination event occurs in connection with any such sale or with respect to any such facility; or
(n) a Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 13.1(h) or §12.1(j13.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days or any other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the any covenant contained in §9.1 Section 7.15 or Section 7.16;
(d) the Borrower shall fail to comply with any covenant contained in Article 9, and such failure shall continue uncured for 45 days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9Agent;
(e) the Borrower or any of its Subsidiaries or the Borrowers Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified above in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan DocumentsSection 12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries or the Guarantor in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower or any of its Subsidiaries or the Borrowers Guarantor shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, including, without limitation, the Prudential Loan, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) the Borrower or any of its Subsidiaries or the Borrowers or REITGuarantor, (iA) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or the Guarantor or of any substantial part of its assetsthe assets of any thereof, (iiB) shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries or the Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iiiC) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of its Subsidiaries or the Borrowers or REIT Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower or any such Person of its Subsidiaries or the Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and the Borrower or any such Person of its Subsidiaries or the Guarantor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) 60 days following the filing or commencement thereof;
(j) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of its Subsidiaries or the Borrowers or REIT or adjudicating any such Person, Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person of its Subsidiaries or the Guarantor, in each case of the foregoing in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one 60 days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries or the Guarantor that, either individually with other outstanding uninsured final judgments, undischarged, against the Borrower or any of its Subsidiaries or the Guarantor exceeds in the aggregate, exceed aggregate $25,000,0005,000,000.00;
(l) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or the Guarantor or any of the Borrowersits holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofthereof in any material respect as determined by the Majority Banks;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower or the Guarantor, or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Borrower or the Guarantor, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against the Borrower or the Guarantor or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to any Guaranteed Pension Planthem, an ERISA Reportable Event shall if adversely determined, would have occurred and such event reasonably would be expected to result in liability of any a materially adverse affect on the ability of the Borrowers Borrower or the Guarantor to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 perform each and every one of its obligations under and by virtue of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension PlanLoan Documents;
(o) the Borrower or the Guarantor, shall be indicted for a federal crime, a punishment for which could include the forfeiture of any Change of Control shall occur;
(p) an Event of Default under any assets of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Borrower or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.Guarantor;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Meridian Industrial Trust Inc), Revolving Credit Agreement (Meridian Industrial Trust Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days or any other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the any covenant contained in §9.1 Section 7.14 or Section 7.15;
(d) the Borrowers shall fail to comply with any covenant contained in Section 9, and such failure shall continue uncured for 30 days after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9Agent;
(e) any of the Borrowers Borrowers, the General Partner, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified above in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan DocumentsSection 12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrowers, the General Partner, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrowers, the General Partner, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers Borrowers, the General Partner, the Guarantors or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrowers, the General Partner, the Guarantors or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) 60 days following the filing or commencement thereof;
(j) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrowers, the General Partner, the Guarantors or REIT or adjudicating any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Person, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one 60 days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrowers, the General Partner, the Guarantors or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceeds in the aggregate, exceed aggregate $25,000,0001,000,000.00;
(l) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, the General Partner, the Guarantors or any of their respective holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrowers, the General Partner or the Guarantors or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Borrowers, the General Partner or the Guarantors other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrowers, the General Partner or the Guarantors or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrowers or a Guarantor to perform each and every one of their respective obligations under and by virtue of the Loan Documents;
(o) any of the Borrowers, the General Partner or the Guarantors shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person;
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrowers, the General Partner, the Guarantors or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(oq) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall occur; then, and upon any such Event of Default, notify the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks of such Guarantor's intention to attempt to cancel or terminate the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of DefaultGuaranty, Borrowers will deposit or shall fail to observe or comply with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable term, covenant, condition or agreement under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.Guaranty;
Appears in 2 contracts
Sources: Term Loan Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days or any other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the any covenant contained in §9.1 Section 7.14 or Section 7.15;
(d) the Borrower shall fail to comply with any covenant contained in Section 9, and such failure shall continue uncured for 30 days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9Agent;
(e) any of the Borrowers Borrower, the General Partners, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified above in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan DocumentsSection 12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the General Partners, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower, the General Partners, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers Borrower, the General Partners, the Guarantors or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the General Partners, the Guarantors or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) 60 days following the filing or commencement thereof;
(j) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower, the General Partners, the Guarantors or REIT or adjudicating any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Person, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one 60 days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrower, the General Partners, the Guarantors or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceeds in the aggregate, exceed aggregate $25,000,0001,000,000.00;
(l) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the BorrowersBorrower, the General Partners, the Guarantors or any of their respective holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower, the General Partners, the Guarantors or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Borrower, the General Partners, the Guarantors other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrower, the General Partners or the Guarantors or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrower or a Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents;
(o) any of the Borrower, the General Partners or the Guarantors shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person;
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, the General Partners, the Guarantors or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(oq) any Change of Control the Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall occurnotify the Agent or any of the Banks of such Guarantor's intention to attempt to cancel or terminate the Guaranty, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty;
(pr) an Don R. Daseke, Marsha▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇nd ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇i sha▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇te own directly or indirectly less than five percent (5.0%) of the issued and outstanding shares of the capital stock of Walden;
(s) ▇▇▇ ▇. Daseke shall c▇▇▇▇ ▇▇ ▇▇ ▇▇e Chairman and Chief Executive Officer of, or Marshall B. Edwards s▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇e President and Chief Acquisitions Officer of, or Mark S. Dillinger sha▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇e Chief Financial Officer of, or Steve T. Lamberti sha▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇e Chief Operating Officer of, Walden, and a compete▇▇ ▇▇▇ experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld; or
(t) any Event of Default under as defined in any of the other Loan Documents Documents, shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §Section 12.1(h), §Section 12.1(i) or §Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks or the Agent. If demanded by The Borrower and any other Person shall be entitled to conclusively rely on a statement from the Agent in its absolute that it has the authority to act for and sole discretion after bind the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge Banks pursuant to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit and the other Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersDocuments.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers : any Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers ; any Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, the facility fee, the Bankers' Acceptance Fees, any Letter of Credit Fee, the Agents' fees, or other sums due hereunder or under any of the date that other Loan Documents, after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
, and such failure shall continue unremedied for a period of five (c5) the Borrowers days; any Obligor shall fail to comply with the covenant any of its covenants contained in §9.1 (i) ss.10, or (ii) ss.9 and such failure default shall continue uncured unremedied for a period of ten (10) days after written notice thereof shall have been of such default is given to the Borrowers by the Administrative Agent as provided in §3.2or any Lender;
(d14.1) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to such Obligor by the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) ; any material representation or warranty made by or on behalf of the Borrowers any Obligor in this Credit Agreement or any of their respective Subsidiaries in this Agreement or any the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) ; The Guarantor or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and gracegrace (not to exceed thirty (30) days), (i) any principalIndebtedness with an outstanding principal amount in excess of $1,000,000, interest (ii) any Indebtedness under the Licensed Shoe Debt, or other amount on account (iii) any obligations in respect of any obligation for borrowed money operating leases where the remaining lease payments (under one or credit received or other Indebtednessmore operating leases) would, in the aggregate, be in excess of $1,000,000, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation such Indebtedness described in subclauses (i) or (ii) of this clause (f), or any such operating lease described in subclause (iii) of this clause (f) for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or otherwise act to enforce any rights and remedies thereunder, unless, prior to termination of the Commitments and/or acceleration pursuant to this ss.14.1, the holder or holders of such obligations shall have, in writing, waived such default and a copy of such waiver of default shall have been furnished to the Administrative Agent; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly Guarantor or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assets, (ii) the assets of such Person or shall commence any case or other proceeding relating to it the Guarantor or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Guarantor or any such Person under of its Subsidiaries and the Guarantor or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or thereto, acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety otherwise remain undismissed for a period of sixty (9060) days following the filing or commencement thereof;
(j) days; a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Guarantor or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Guarantor or any such Person of its Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
constituted (kwhich order is not dismissed within sixty (60) days after the entry thereof); there shall remain in force, undischarged, unsatisfied and unstayedunsatisfied, unstayed for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment (unless bonded pending appeal) against Parent the Apparel Obligors that, with other outstanding final judgments, undischarged, against the Borrower or any Subsidiary Borrower thatof its Subsidiaries exceeds in $500,000 the aggregate; the holders of all or any part of Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, either individually redeemed or repurchased in whole or in part; provided, however, that a conversion of the aggregateSubordinated Notes into equity interests in the Guarantor (pursuant to the terms of the indenture under which the Subordinated Notes were issued) shall not constitute a prepayment, exceed $25,000,000;
(l) redemption or repurchase of such Subordinated Notes; if any of the Loan Documents Documents, including without limitation, the guaranty provisions contained within the Credit Agreement, shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Guarantor or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) ; with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Obligors or any of the Borrowers to pay money their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
; the Borrowers shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (o30) days; there shall occur any Change strike, lockout, labor dispute, embargo, condemnation, act of Control shall occur;
God or public enemy, or other casualty, which in any such case causes, for more than sixty (p60) an Event consecutive days, the complete cessation of Default under revenue producing activities at a material number of facilities of the Guarantor or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and has a material adverse effect on the other Loan Documents shall occurbusiness or financial condition of the Borrowers taken as a whole; except as permitted under ss.9.5, the Guarantor shall, at any time, legally or beneficially own directly or indirectly, less than one hundred percent of the issued and outstanding capital stock of any Borrower, on a fully diluted basis; or except as permitted under ss.9.5, Casual Male shall, at any time, legally or beneficially own less than one hundred percent of the issued and outstanding capital stock of each of TCM and TCMB&T, on a fully diluted basis; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(hss.ss.14.1(g), §12.1(i14.1(h) or §12.1(j14.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest notice from the Administrative Agent or other notice any Lender; provided further that in the event of any kind from any Event of Default specified in ss.ss.14.1(g), 14.1(h) or 14.1(k), the Total Commitments of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit shall immediately terminate and all other Obligations, In such amounts owing shall become immediately due and payable automatically and without any requirement of notice from the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders. No remedy herein conferred upon the Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan is intended to be made in the undrawn amount of all Letters of Credit. The proceeds exclusive of any such Revolving Credit Loan will other remedy and each and every remedy shall be pledged cumulative and shall be in addition to and held every other remedy given hereunder or now or hereafter existing at law or in equity or by Agent as security for statute or any amounts that become payable under the Letters other provision of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowerslaw.
Appears in 2 contracts
Sources: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Events of Default and Acceleration. If any of the The following events (shall constitute “Events of Default” or, if the giving for purposes of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occurthis Agreement:
(a) the Borrowers Either Borrower shall fail to pay any principal of the Loans any Loan when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;; or
(b) the Borrowers Either Borrower shall fail to pay any interest on the Loans within five (5) days any Loan, any fees or other sums due hereunder or under any of the other Loan Documents, for a period of three (3) Business Days following the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;; or
(ci) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries Any Loan Party shall fail to perform any other term, covenant or agreement contained in §9.2Section 6.05, §9.3Section 6.06 (but only as to corporate existence), §9.4Section 6.10, §9.5Section 6.11, §9.6Section 6.13 through 6.30, §9.7 or §9.8 and such failure shall continue inclusive, or, for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given so long as NEE Partners has any obligations pursuant to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers NEE Partners Guaranty, NEE Partners shall fail to perform any other term, covenant or agreement contained in Article IV of the NEE Partners Guaranty or (ii) any Loan Party shall fail to perform any term covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 8.01) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Notice of such failure has been given to the Borrowers by the Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of or any Lender’s original notice;; or
(fd) any material Any representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries Loan Party in this Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, or for so long as NEE Partners has obligations pursuant to the NEE Partners Guaranty any advance representation or warranty of a LoanNEE Partners in the NEE Partners Guaranty, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;by the terms of this Agreement; or
(ge) Any Loan Party, NEE Partners (if the NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any of Material Project Company, shall default in the Borrowers shall fail to pay payment when due (including, without limitation, at maturity)of any principal of or any interest on any Funded Debt aggregating US$50,000,000 or more, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation Funded Debt, in an aggregate amount of US$50,000,000 or more, for borrowed money such period of time as would permit (assuming the giving of appropriate notice or credit received or other Indebtedness and the lapse of time if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; , unless such failure shall have been cured by such Loan Party, NEE Partners or such Material Project Company, as the case may be, or effectively waived by such holder or holders, provided that the events described in §12.1(g) shall not constitute an no Event of Default unless such failure shall result under this paragraph (f) from an event or circumstance limited to performa Material Project Company unless, together with other failures as result thereof and giving Pro Forma Effect thereto, US Holdings or OpCo would be in violation of Section 6.13, provided further, that no Event of Default shall result under this paragraph (e) from an event or circumstance under the Cash Sweep and Credit Support Agreement until ▇▇▇▇ shall have initiated or participated in legal proceedings to perform as described in §12.1(g), involve singly or in enforce its right to payment under the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;Cash Sweep and Credit Support Agreement; or
(hf) Any Loan Party, NEE Partners (if the NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any Material Project Company shall (1) voluntarily terminate operations or apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person, or of all or a substantial part of the Borrowers or REITassets of such Person, (i2) shall admit in writing its inability, or be generally unable, to pay its debts as the debts become due, (3) make an a general assignment for the benefit of its creditors, or admit in writing its general inability to pay or generally fail to pay its debts (4) commence a voluntary case under the United States Bankruptcy Code (as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect), (5) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, (6) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code, or (iii7) shall take any corporate action to authorize or in furtherance for the purpose of effecting any of the foregoing;; provided that no Event of Default shall result under this paragraph (f) from an event or circumstance limited to a Material Project Company unless, as result thereof and giving Pro Forma Effect thereto, US Holdings or OpCo would be in violation of Section 6.13; or
(ig) without its application, approval or consent, a petition or application proceeding shall be filed for commenced, in any court of competent jurisdiction, seeking in respect of any Loan Party, NEE Partners (if the NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any Material Project Company: the liquidation, reorganization, dissolution, winding-up, or composition or readjustment of debt, the appointment of a trustee or other custodiantrustee, receiver, liquidator or receiver the like of any such Person, or of the Borrowers or REIT all or any substantial part of the assets of any thereofsuch Person, or a case or other proceeding shall be commenced against any like relief in respect of such Person under any law relating to bankruptcy, insolvency, reorganization, arrangementwinding-up, insolvencyor composition or adjustment of debts unless such proceeding is contested in good faith by such Person; and, readjustment of debtif the proceeding is being contested in good faith by such Person, dissolution the same shall continue undismissed, or liquidation or similar law of any jurisdiction, now or hereafter unstayed and in effect, and for any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within period of ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolventconsecutive days, or approving a petition in any such case or other proceeding, or a decree or an order for relief is against such Person shall be entered in respect of any such Person in an involuntary case under federal bankruptcy laws the Bankruptcy Code; provided that no Event of Default shall result under this paragraph (g) from an event or circumstance limited to a Material Project Company unless, as now result thereof and giving Pro Forma Effect thereto, US Holdings or hereafter constituted;OpCo would be in violation of Section 6.13; or
(kh) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgment against any Loan Party or, NEE Partners (if the NEE Partners Guaranty is in effect) that, with other then undischarged, unsatisfied and unstayed, outstanding final judgments against Parent Borrower or any Subsidiary Borrower thatsuch Loan Party, either individually or as the case may be, exceeds in the aggregate, exceed $25,000,000;aggregate US$50,000,000; or
(li) any of the Loan Documents or the NEE Partners Guaranty (other than to the extent provided therein) shall be canceled, terminated, revoked or rescinded otherwise by any applicable Loan Party or NEE Partners, respectively, other than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required all Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the NEE Partners Guaranty (other than to the extent provided therein) shall be commenced by or on behalf of any applicable Loan Party, or NEE Partners, respectively, or any of the Borrowerstheir stockholders, or any court or any other governmental or regulatory authority or agency Governmental Authority of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents or the NEE Partners Guaranty is illegal, invalid or unenforceable in accordance with the terms thereof;; or
(mj) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(ni) with respect to any Guaranteed Pension Plan, (A) an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in occurred; (B) an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or application for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee minimum funding waiver shall have been appointed by the United States District Court filed; (C) a notice of intent to administer terminate such Planplan pursuant to Section 4041(a)(2) of ERISA shall have been issued; or (zD) a lien under Section 303(k) of ERISA shall be imposed; (E) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension plan; (F) the PBGC shall have applied to have a trustee appointed to administer such plan pursuant to Section 4042 of ERISA; or (G) any event or condition that constitutes grounds for the termination of, or the appointment of a trustee to administer, such plan pursuant to Section 4042 of ERISA shall have occurred or shall exist, provided that with respect to the event or condition described in Section 4042(a)(4) of ERISA, the PBGC shall have notified a Borrower or any ERISA Affiliate that it has made a determination that such plan should be terminated on such basis; or (ii) with respect to any Multiemployer Plan;, a Borrower or any ERISA Affiliate shall incur liability as a result of a partial or complete withdrawal from such plan or the reorganization, insolvency or termination of such plan; and, in the case of each of (i) or (ii), the Majority Lenders shall have determined in their reasonable discretion that such events or conditions, individually or in the aggregate, reasonably could be expected likely to result in liability of the Borrowers in an aggregate amount exceeding US$50,000,000; or
(ok) there shall occur any Change of Control shall occur;Control; or
(pl) an Event any Collateral Document after delivery thereof pursuant to Section 7.01 or 6.11 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 6.15) on the Collateral purported to be covered thereby. Notwithstanding anything to the contrary contained in this Article 8, in the event that OpCo or US Holdings fails to comply with the requirements of Default under any Section 6.13, until the expiration of the other Loan Documents shall occur; then, and upon any tenth (10th) day subsequent to the date the certificate calculating such Event of Defaultcompliance is required to be delivered pursuant to Section 6.04(a) or (b) (the period from such failure to comply to such tenth (10th) day, the Agent may“Cure Period”), OpCo or US Holdings shall have the right to receive cash contributions to the capital of OpCo or US Holdings, as applicable (collectively, the “Cure Right”), and upon the request receipt by OpCo or US Holdings, as applicable, of such cash (the Required Lenders shall, by notice in writing “Cure Amount”) pursuant to the Borrowers declare all amounts owing exercise by OpCo or US Holdings of such Cure Right compliance with respect the covenants set forth in Section 6.13 shall be recalculated giving effect to this Agreementthe following pro forma adjustments:
(i) Covenant Cash Flow of OpCo or US Holdings, as applicable, shall be increased, solely for the Notes, the Letters purpose of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived measuring compliance with Section 6.13 by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculations, OpCo or US Holdings, as applicable, shall then be in compliance with the requirements of Section 6.13, OpCo or US Holdings, as applicable, shall be deemed to have satisfied the requirements of Section 6.13 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.13 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the contrary, (a) in each Measurement Period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (b) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 6.13 as of the relevant date of determination and (c) for the initial Measurement Period with respect to which such equity cure was made, the increase in Covenant Cash Flow of OpCo or US Holdings, as applicable, resulting from the exercise of the Cure Right shall be disregarded for purposes of determining the availability or amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent any covenant baskets and, for the benefit purposes of determining compliance with any covenants that require pro forma compliance with Section 6.13, shall not result in any pro forma increase in cash or debt reduction except to the extent such proceeds are actually applied to prepay indebtedness. For the avoidance of doubt, the increase in Covenant Cash Flow of OpCo or US Holdings, as applicable, resulting from the exercise of the Lenders as security Cure Right shall not be disregarded in any period subsequent to the initial Measurement Period, for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowerspurposes described in clause (c).
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (NextEra Energy Partners, LP)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Business Days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days Business Days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2[Reserved];
(d) any of the Borrowers Borrower or any of their respective Subsidiaries Guarantor shall fail to perform any other term, covenant or agreement contained in §9.29.1, §9.39.2, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble 9.9 which they are required to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9perform;
(e) any of the Borrowers Loan Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day 30)-day period despite Borrowersuch Loan Party’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower such Loan Party shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of LenderAgent’s original notice; provided that the foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) Business Days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedmade;
(g) Borrower or any of the Borrowers shall fail Guarantor (or Subsidiary thereof) defaults under (i) any Recourse Indebtedness in an aggregate amount equal to pay when due (including, without limitation, or greater than $75,000,000.00 with respect to all uncured defaults at maturity)any time, or within (ii) any applicable period of notice and grace, Non-Recourse Indebtedness in an aggregate amount equal to or greater than $200,000,000.00 with respect to all uncured defaults at any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000time;
(h) Borrower or any of the Borrowers Guarantor or REIT, Unencumbered Asset Subsidiary (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower or REIT any Guarantor, or Unencumbered Asset Subsidiary or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower or REIT any Guarantor, or Unencumbered Asset Subsidiary, or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent any of Borrower or any Guarantor (or Subsidiary Borrower thereof) that, either individually or in the aggregate, exceed $25,000,00050,000,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded by any of Borrower or any Guarantor otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the BorrowersLoan Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof, and in each case of the foregoing the Loan Parties fail to enter into an amendment or modification to the existing Loan Documents or enter into new documentation, each in form and substance reasonably satisfactory to Agent and Required Lenders, which have the effect of rendering the cancellation, termination, revocation, rescission, illegality, invalidity or unenforceability immaterial;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers Loan Parties, any Unencumbered Asset Subsidiary shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers Loan Parties shall occur other other, in each case, than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected likely to result in liability of any of the Borrowers any of Borrower or any Guarantor to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 50,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected likely to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) the occurrence of any Change of Control shall occur;Control; or
(p) an Event of Default under any of the other Loan Documents shall occuroccur (subject, in any case, to any applicable cure provision set forth in §12.1(e); then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersLoan Parties; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Lender or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Credit Agreement (Independence Realty Trust, Inc.), Credit Agreement (Independence Realty Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable (including, without limitation, under and pursuant to Section 3.2(a) and (b)), whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans, any Fees, or other sums due hereunder or under any of the other Loan Documents, within three (3) Business Days after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §Sections 8.1, the first sentence of 8.4.1, the first sentence of 8.5, 9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2- 9.6 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 13.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries (whether in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents ) shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in an aggregate principal amount in excess of $5,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in an aggregate principal amount in excess of $5,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $5,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), PROVIDED that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 5,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrower or any of its Subsidiaries is obligated to repurchase $5,000,000 or more of receivables of the type described in clause (g) of the definition of "Indebtedness" hereof, whether sold under a purchase facility or otherwise, or a termination event occurs in connection with any such sale or with respect to any such facility; or
(m) a Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Events of Default and Acceleration. If Upon the occurrence and at any time during the continuation of any of the following events or occurrences (each an “Events Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:):
(a) the Borrowers shall fail to pay any principal portion of the Loans when principal amounts due hereunder (the same shall become due and payable, whether at the stated date of maturity “Loan”) or any accelerated date of maturity interest thereon shall not be paid, or at any other date fixed for paymentshall not have been satisfied as provided herein, by the applicable Scheduled Maturity Date;
(b) (i) there shall have occurred and be continuing any material breach by the Borrowers shall fail Borrower in respect of its obligations to pay any interest on the Loans within five (5) days Lender under that certain 4G MVNO Agreement dated as of November 28, 2008, among the date that Borrower, the Lender, Comcast MVNO II, LLC, TWC Wireless, LLC, and BHN Spectrum Investment, as the same has heretofore and may hereafter be amended, restated, supplemented or otherwise modified from time to time (the “4G MVNO Agreement”), including without limitation, as amended by that certain November 2011 Clearwire/Sprint Amendment to the 4G MVNO Agreement dated as of November , 2011, between the Borrower and the Lender (the “4G MVNO Sprint/Clearwire Amendment”)); or (ii) the 4G MVNO Agreement as between the Borrower and the Lender shall become due and payablehave been terminated or cancelled at any time prior to the Second Scheduled Maturity Date; or
(i) the Borrower shall commence any case, proceeding or other action (A) under any reimbursement obligations 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 the Letters of Credit it, or any fees seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other sums due hereunder (other than any voluntary prepayment) relief with respect to it or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Documentits debts, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gB) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the seeking appointment of a trustee receiver, trustee, custodian, conservator or other custodian, liquidator or receiver similar official for it or for all or any substantial part of its assets, or the Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall commence be commenced against the Borrower any case case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against the Borrower any case, proceeding relating to it under any bankruptcyor other action seeking issuance of a warrant of attachment, reorganizationexecution, arrangement, insolvency, readjustment of debt, dissolution or liquidation distraint or similar law process against all or any substantial part of its assets that results in the entry of an order for any jurisdictionsuch relief that shall not have been vacated, now discharged, or hereafter stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower shall take any action in effectfurtherance 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 shall take any action to authorize generally not, or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereofunable to, or a case or other proceeding shall be commenced against any such Person under any bankruptcyadmit in writing its inability to, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effectpay its debts as they become due; then, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceedingevent, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kA) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and if such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) is an Event of Default specified in clause (ii) of paragraph (b) above, or in clause (i) or (ii) of paragraph (c) above, the Loan (with accrued interest thereon) and all other amounts owing under any this Promissory Note shall automatically and immediately become due and payable in full, without further action on the part of the other Loan Documents shall occur; thenLender, and upon (B) if such event is any such other Event of Default, the Agent may, Lender may declare the Loan (with accrued interest thereon) and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all other amounts owing with respect under this Promissory Note to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately be due and payable without presentmentforthwith, demand, protest or other notice of any kind, all of which are hereby expressly waived by whereupon the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts same shall immediately become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowersfull.
Appears in 2 contracts
Sources: Commitment Agreement, Commitment Agreement (Clearwire Corp /DE)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for fifteen (15) calendar days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Non-Recourse Indebtedness totaling in excess of $25,000,00020,000,000 individually or in excess of $30,000,000.00 in the aggregate;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fifteen (6015) days during any calendar year, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent (x) the Borrower or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,0005,000,000.00 in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary Guarantor that, either individually or in the aggregate, exceed $5,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Majority Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the Collateral;
(p) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) the Borrower or any Subsidiary Guarantor abandons all or a portion (other than de minimis portion) of the Mortgaged Property;
(r) any Mortgaged Property shall be taken on execution or other process of law (other than by eminent domain) in any action against Borrower or any Subsidiary Guarantor;
(s) the holder of any lien or security interest on the Mortgaged Property (without implying the consent of the Agent or the Lenders to the existence or creation of any such lien or security interest) whether superior or subordinate to the Mortgage or any of the other Loan Documents, declares a default and such default is not cured within the applicable grace or cure period set forth in the applicable document (subject, to the extent applicable, to Borrower’s right to contest pursuant to §7.8) or such holder institutes foreclosure or other proceedings for the enforcement of its remedies thereunder;
(t) the Mortgaged Property, or any part thereof, is subjected to actual or threatened waste or to removal, demolition or material alteration so that the value of the Mortgaged Property is materially diminished thereby, and the Agent in good faith determines that the Lenders are not adequately protected from any loss, damage or risk associated therewith;
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not a Mortgaged Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Control shall occur;; or
(py) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallMajority Lenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If 8.1 The occurrence of any one or more of the following shall constitute an Event of Default hereunder:
8.1.1 Failure to make any payment of any principal, interest or other charges in respect of any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Obligations within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers date on which the same shall be due.
8.1.2 Default in the observance or performance of any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 of Borrower herein set forth or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or set forth in any of the other Loan and Security Documents which they are required to perform or in any agreement, note or instrument heretofore, now or hereafter executed by Borrower in favor of Bank (other than those specified set forth in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 8.1) or in the other Loan Documents), and such failure shall continue for which is not cured within thirty (30) days after Borrower receives from Agent of written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeBank;
(f) 8.1.3 If any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Documentrepresentation, or any reportwarranty, certificate, financial statement, request for a Loan, Letter of Credit Request, schedule or in any other document information made or instrument delivered furnished by Borrower herein or pursuant hereto or pursuant to the Loan and Security Documents is or in connection with this Agreementshall be incorrect, any advance of a Loan, the issuance of any Letter of Credit untrue or any of the other Loan Documents shall prove to have been false misleading in any material respect upon at the date when time made or given;
8.1.4 Default in the performance of any material obligations of Borrower to any third party; unless the Borrower is disputing such obligation in good faith and has set aside adequate reserves therefor;
8.1.5 Any change for any reason whatsoever in the majority ownership or control of Borrower other than as expressly permitted hereunder;
8.1.6 Loss, theft, damage or destruction of any portion of Property of Borrower for which there is either no insurance coverage or for which, in the opinion of Bank, there is insufficient insurance coverage or the making of any levy, seizure or attachment upon any portion of the property of Borrower, provided that Borrower shall not be deemed to have been made be in default of this provision if Borrower has maintained or repeatedcaused to be maintained the insurance coverage required by Section 6.2 and Section 6.3 hereof;
(g) any 8.1.7 Insolvency of the Borrowers shall fail Borrower or failure of Borrower generally to pay when its debts as they come due (including, without limitation, at maturity), or within any applicable period if a creditors' committee is appointed for the business of notice and grace, any principal, interest Borrower; or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an if B▇▇▇▇▇▇▇ makes a general assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply an Order for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order Relief is entered appointing a trustee, custodian, liquidator or receiver for any of with respect to Borrower under the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain , or if a case in forcebankruptcy or a petition for reorganization or to effect a plan or arrangement with creditors is filed by or against Borrower; or if Borrower applies for or permits the appointment of a receiver, undischargedtrustee, unsatisfied and unstayedcustodian or liquidator for any of its property or assets, or if any such receiver, trustee, custodian or liquidator is appointed for more than any of such property or assets; and, in the case of any one of the above actions or proceedings commenced against Borrower, such action or proceeding is not dismissed within sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000days;
(l) any of the Loan Documents shall be canceled, terminated, revoked 8.1.8 If a proceeding is filed or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf against Borrower for its dissolution or liquidation and in the event of a proceeding commenced against Borrower the same remains undismissed or unstayed for a period of sixty (60) days; or if Borrower voluntarily or involuntarily dissolves or is dissolved, terminates or is terminated;
8.1.9 If Borrower is enjoined, restrained or in any of the Borrowersway prevented by a final, non-appealable Court or Administrative order from conducting all or any court or any other governmental or regulatory authority or agency material part of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that its business affairs;
8.1.10 The occurrence of an Event of Default under any one or more of the Loan and Security Documents is illegalor under any other document, invalid instrument or unenforceable agreement now or hereafter evidencing, securing or executed in accordance connection with any indebtedness or obligation of Borrower to the terms thereofBank;
8.1.11 The entry of a final judgment for the payment of money in excess of an aggregate of One Hundred Thousand and 00/100 (m$100,000.00) any dissolutionDollars shall be rendered against the Borrower, terminationand the same shall remain undischarged for a period of thirty (30) consecutive days, partial or complete liquidation, merger or consolidation during which execution shall not be effectively stayed;
8.1.12 The occurrence of any attachment of any deposits or other property of the Borrowers Borrower in the hands or possession of the Bank, or the occurrence of any attachment of any other property of the Borrower in an amount exceeding One Hundred Thousand and 00/100 ($100,000.00) Dollars which shall occur not be discharged within thirty (30) days of the date of such attachment;
8.1.13 Default with respect to any evidence of indebtedness of the Borrower (other than to the Bank) relating to the Property, if the effect of such default is to accelerate the maturity of such indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to the stated maturity thereof, or if any indebtedness of the Borrower (other than to the Bank) is not paid when due and payable, whether at the due date thereof or a date fixed for prepayment, whether by acceleration or otherwise;
8.1.14 The Borrower attempts to assign its rights under this Agreement or any saleinterest herein, transfer or other disposition if the Property is conveyed or encumbered contrary to the provisions of this Agreement;
8.1.15 Any "Event of Default" as defined in the assets Property Ground Lease (in each case only to the extent that such Event of Default is not cured by any of the Borrowers shall occur other than leasehold mortgagee as permitted under the terms of this Agreement Property Ground Lease) or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any termination of the Borrowers to pay money to the PBGC Property Ground Lease; or
8.1.16 The Property is materially damaged or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 destroyed by fire or other casualty or cause, and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to as a result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall thereof, Tenant has exercised any contractual right it may have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;the Property Ground Lease.
(o) 8.2 If any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon then or at any such Event of Defaulttime thereafter, Bank may declare the Agent may, and upon the request of the Required Lenders shall, by notice in writing Obligations to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, be immediately due and payable payable, without presentmentnotice, protest, presentment or demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersB▇▇▇▇▇▇▇.
Appears in 2 contracts
Sources: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)
Events of Default and Acceleration. If any Any of the following events (shall constitute an “Events Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, a “DefaultsDefault”) shall occur:
(a) the Borrowers any Borrower shall fail to pay any principal of the its Loans or any Borrower shall fail to pay any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers any Borrower shall fail to pay (i) any interest on its Loans, any Commitment Fee, any Letter of Credit Fee, or any fees due under the Loans within five (5) days of the date that Fee Letter, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for three (3) days; or (ii) any other sums due hereunder or under any of the other Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for thirty (30) days;
(c) any of the Borrowers or any of their Restricted Subsidiaries shall fail to comply with any of the covenant covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to §9.1, 9.5.1, the Borrowers by the Agent as provided in first sentence of §3.29.6, 9.12, 9.14, 10 or 11;
(d) any of the Borrowers or any of their respective Restricted Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below14.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Applicable Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of any of the Borrowers or any of their respective Restricted Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedmade;
(gf) any of the Borrowers or any of their Restricted Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principalobligation in excess of the aggregate amount of $100,000,000, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc), Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for ten (10) days;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the thirty maturity of the Obligations);
(30c) day cure period provided Borrower shall fail to comply with any covenant contained in the preamble §8 or §9;
(d) Borrower shall fail to Article 9 after written notice thereof comply with any covenant contained in §7.4 and such failure shall have been given to the Borrowers by Agent as provided in the preamble to Article 9continue for ten (10) days;
(e) any of the Borrowers Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), ; and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeBorrower by Agent;
(f) any material Any representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries Borrower in this Agreement or by Borrower in any other Loan DocumentDocument to which it is a party, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower shall fail to pay at maturity or otherwise when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness having an aggregate principal amount outstanding of at least $100,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, Borrower (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of Borrower or of any substantial part of its assetsthe assets of any thereof, including, without limitation, any Mortgaged Property, (ii2) shall commence any case or other proceeding relating to it Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT Borrower, or any substantial part of the assets of any thereof, including, without limitation, any Mortgaged Property, or a case or other proceeding shall be commenced against any such Person Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Borrower shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a A decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower or any Subsidiary Borrower Borrower, that, either individually or with other outstanding final judgments, undischarged, against Borrower exceeds in the aggregate, exceed aggregate $25,000,0005,000,000 (to the extent not paid or covered by insurance);
(l) If any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of Borrower or CORR or any of the Borrowerstheir respective stockholders, partners, members or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any Any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower, or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Borrower, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension PlanBorrower shall be indicted for a federal crime, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability a punishment for which could include the forfeiture of any assets of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event Borrower included in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension PlanCollateral;
(o) any A Change of Control shall occuroccur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(p) an Any Event of Default under Default, as defined in any of the other Loan Documents other than the Limited Guaranty or the Pledge and Security Agreement, shall occur;
(q) Any amendment to or termination of a financing statement naming Borrower as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of Borrower without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming Borrower as debtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other than Agent or Agent’s counsel (or by Borrower at Agent’s direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof;
(r) Either (i) a “▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇” shall occur and be continuing under the Ultra Lease, or (ii) any other “Lessee Event of Default” shall occur and not be cured within ninety (90) days after its occurrence;
(s) Any action or proceeding is commenced to foreclose or otherwise realize on the ▇▇▇▇▇▇▇ Judgment and such Default is not cured by the Borrower by the earlier of (i) sixty (60) days after commencement of any action to have the Mortgaged Property related thereto sold to satisfy the ▇▇▇▇▇▇▇ Judgment, or (ii) five (5) Business Days prior to entry of any judgment directing the sale of the Mortgaged Property related thereto;
(t) Any action or proceeding is commenced to foreclose or otherwise realize on the Nerd Enterprise Mortgage, and such Default is not cured by the Borrower by the earlier of (i) 60 days after the mortgagee or any other party commences any action to foreclose the Nerd Enterprise Mortgage whether by judicial action or under advertisement and power of sale, or (ii) five (5) Business Days prior to the earlier of (x) a sale of the Mortgaged Property related thereto, or (y) a judgment directing such sale; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded Notwithstanding the other terms of this Agreement or the terms of any other Loan Document, so long as the Ultra Lease remains in effect and the LGS Assets are used, maintained and operated by Agent Lessee as permitted or required by the terms of the Ultra Lease, the breach, default or failure to perform by Borrower under any provision relating to such matters contained in its absolute the Loan Documents shall not, in and sole discretion after the occurrence and during the continuance of an itself, result in a Default or Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable Default under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersAgreement.
Appears in 2 contracts
Sources: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment (including, without limitation, amounts due under §3.5);
(b) the Borrowers shall fail to pay any interest on the Loans, or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within , and such failure continues for five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentdays;
(c) the Borrowers any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenant any of their respective covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.28.1, 8.6, 8.7, 8.8, 8.9, 8.12, 8.21, 8.22, 8.23, 9 or 10;
(d) any of the Borrowers Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 13) and such failure shall continue continues for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9days;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by of any Borrower or on behalf of the Borrowers any Guarantor or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any Guarantor or any of the Borrowers their respective Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, in respect of any Capitalized Leases (x) in respect of any Recourse obligations or shall credit or (y) in respect of any Without Recourse obligations or credit which total in an aggregate amount in excess of $7,500,000; or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $7,500,000, in either case for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute , or an "Event of Default unless Default" shall occur and be continuing under the Note Purchase Agreement that permits acceleration; or (iii) default in any payment obligation under a Hedge Agreement, and such failure to perform, together with default shall continue after any applicable grace period contained in such Hedge Agreement or any other failures to perform as described in §12.1(g), involve singly agreement or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;instrument relating thereto.
(hg) any Borrower, any Guarantor or any of the Borrowers or REIT, (i) their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower, any Guarantor or any of their respective Subsidiaries or of any substantial part of its assetsthe properties or assets of any Borrower, (ii) any Guarantor or any of their respective Subsidiaries or shall commence any case or other proceeding relating to it any Borrower, any Guarantor or any of their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower, any bankruptcyGuarantor or any of their respective Subsidiaries and (i) any Borrower, reorganization, arrangement, insolvency, readjustment any Guarantor or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within ninety continue undismissed, or unstayed and in effect, for a period of sixty (9060) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such PersonBorrower, any Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower, any Guarantor or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any Borrower, any Guarantor or any of their respective Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) any of the Loan Documents or any material provision of any Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersLenders (or all Lenders if required under §26), or any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries or any Guarantor or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial "Event of Default" or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowers shall occur extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or any sale, transfer or other disposition of the assets of provided in any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents, shall occur and be continuing;
(nl) any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of any Borrower or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000, and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;; or
(om) (i) any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of (a) 20% or more of the outstanding shares of common stock of Sovran, or (b) 33% or more in the aggregate of the outstanding limited partnership interests of SALP (other Loan Documents than by Sovran and its wholly-owned Subsidiaries); (ii) Holdings ceasing to be the sole general partner and sole investment manager of SALP; (iii) Sovran and its wholly-owned Subsidiaries cease to beneficially own 100% of the capital stock of Holdings; or (iv) during any period of twelve consecutive calendar months, individuals who were directors of Sovran on the first day of such period (together with directors whose election by the Board of Directors or whose nomination for election by Sovran's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Restatement Date or whose election or nomination for election was previously so approved) shall occurcease to constitute a majority of the board of directors of Sovran; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowerseach Borrower and each Guarantor; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded Administrative Agent or action by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Administrative Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Sovran Acquisition LTD Partnership), Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Events of Default and Acceleration. If any of the following events ---------------------------------- (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2(S)9, 10 or 11;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this (S)14.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of its Subsidiaries (other than a Non- Material Subsidiary unless the Borrowers Borrower or REIT, any other Subsidiary has been adversely effected by the occurrence of such event (ia "Deminimis Subsidiary")) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) or of any substantial part of the assets of the Borrower or any of its assets, Subsidiaries (iiother than a Deminimis Subsidiary) or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries (other than a Deminimis Subsidiary) and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries (other than a Deminimis Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries (other than a Deminimis Subsidiary) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary (other than a Deminimis Subsidiary) of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries (other than a Deminimis Subsidiary) that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of (S)302(f)(1) of ERISA), provided that the Agent determines -------- in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries (other than a Deminimis Subsidiary) shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by the Borrower or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries, taken as a whole;
(p) an Event of Default under the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the other Loan Documents Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(q) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 30% or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event -------- of Default specified in §12.1(h(S)(S)14.1(g), §12.1(i14.1(h) or §12.1(j14.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers any Borrower shall fail to pay any principal or interest of the Loans any Loan or any Reimbursement Obligation when the same shall become due and payablepayable (or within three (3) days thereafter), whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers any Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit Fees or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date Hedging Agreement (other than an amount referred to in clause (a) of maturity or at any other date fixed for paymentthis Section 13.1) within five (5) Business Days after the same shall become due and payable;
(c) the Borrowers any Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to Sections 8.3, 8.4.1, the Borrowers by the Agent as provided in §3.2first sentence of Section 8.5, Sections 8.11 or 8.13, or Article 10 of this Credit Agreement;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 13.1) for forty-five (45) days after the other subclauses earlier of (i) the date that the Administrative Agent gives notice of such failure to such Borrower (with a copy to the Borrowing Administrators) and (ii) the date that a senior officer or (with respect to Lionbridge BV) managing director of such Borrower obtains actual knowledge of such failure;
(e) any representation or warranty of any Borrower in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrowers Any Borrower shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Consolidated Capitalized Leases, in each case, having an outstanding principal balance in excess of $1,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, bound evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Consolidated Capitalized Leases, in each case, having an outstanding principal balance in excess of $1,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(h1) any of the Borrowers or REIT, (i) Obligor shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due; or (2) any Obligor shall make an assignment for the benefit of creditors, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Obligor or of any substantial part of its assets, (ii) the assets of such Obligor; or shall commence any case or other proceeding relating to it such Obligor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, ; or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
; or (i3) a if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any Obligor and such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Obligor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety (90) days following the filing thereof; provided, that with respect to any action taken or commencement thereofevent occurring under Dutch law with respect to an Obligor, only bankruptcy (faillissement), suspension of payment (surseance van betaling), emergency proceedings (noodregeling), or any other procedure the effect of which is that the Obligor to which it applies loses the free management or ability to dispose of its property (irrespective of whether that procedure is provisional or final), under Dutch law shall qualify as an action or event referred to in this paragraph (g) for purposes of the Loan Documents;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Obligor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Obligor in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded forty-five consecutive days, any final judgment against any Borrower for the payment of money, together with other outstanding final, undischarged, unsatisfied and unstayed judgments against Parent Borrower or any Subsidiary Borrower thatthe Borrowers, either individually or in excess of $1,000,000 in the aggregate, exceed $25,000,000unless the same is adequately bonded or is being contested by appropriate proceedings properly instituted and diligently conducted;
(lj) the holders of all or any part of any Subordinated Debt shall accelerate the maturity of all or any part of such Subordinated Debt, or any Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase any Subordinated Debt in whole or in part shall have been made;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, or the Administrative Agent’s Liens in a substantial portion of the Collateral shall cease to be perfected or any Pledge Document is deemed ineffective, or shall cease to have the priority contemplated by this Credit Agreement and the Security Documents, in each case otherwise than in accordance with the terms hereof and thereof or with the express prior written agreement, consent or approval of the Required Lenders, ; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Obligors or any of the Borrowers, their Subsidiaries party thereto or any of their respective stockholders; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolutionBorrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, terminationor either Obligor or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Obligors or any of the Borrowers to pay money their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(om) any Change Obligor shall be enjoined, restrained or in any way prevented by the order of Control any Governmental Authority from conducting any material part of its business and such order shall occurcontinue in effect for more than forty-five (45) days;
(pn) an Event there shall occur any material damage to, or loss, theft or destruction of, any Collateral, which could reasonably be expected to have a Material Adverse Effect; then, and in any such event, so long as the same may be continuing,
(1) with the consent of Default the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrowers declare the principal of and interest on the Loans, the Notes and the Reimbursement Obligations at the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this Credit Agreement or any of the other Loan Documents shall occur; then(including, and upon any such Event of Defaultwithout limitation, all Reimbursement Obligations, whether or not the Agent may, and upon the request beneficiaries of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the then outstanding Letters of Credit shall have presented or shall be entitled to present the documents required thereunder) and all other Obligations (other than Obligations in respect of any Hedging Agreements), to be forthwith due and payable, whereupon the other Loan Documents to be, and they same shall thereupon forthwith become, immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by waived, anything in this Credit Agreement or the Borrowersother Loan Documents to the contrary notwithstanding; provided provided, that in upon the event occurrence of any an Event of Default specified in §12.1(h), §12.1(iSection 13.1(g) or §12.1(j13.1(h), all such amounts Obligations (other than Obligations in respect of any Hedging Agreements) shall automatically become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from kind, all of which are expressly waived, anything in this Credit Agreement or in any other Loan Document to the contrary notwithstanding;
(2) with respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration of payment of the Lenders or Loans, Notes and Reimbursement Obligations pursuant to the Agent. If demanded by Agent in its absolute and sole discretion preceding paragraph, within three Business Days after the occurrence and during Domestic Borrowing Administrator receives notice from the continuance Administrative Agent demanding the deposit of an Event of Defaultcash collateral pursuant to this paragraph, the Domestic Borrowers will shall at such time deposit with and pledge to in a cash collateral account opened by the Administrative Agent cash in an amount equal to the aggregate then undrawn and unexpired amount of all undrawn such Letters of Credit. Such amounts will Amounts held in such cash collateral account shall be pledged applied by the Administrative Agent to reimburse the relevant LC Issuers for LC Disbursements for which they have not been reimbursed, and held 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 the other Obligations. After all such Letters of Credit shall have expired or been fully drawn upon, the Reimbursement Obligations shall have been satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account, plus any accrued interest thereon or realized profits with respect thereto, shall be returned to the Domestic Borrowing Administrator for account of the Domestic Borrowers within three Business Days after such payment in full; and
(3) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by Agent for notice to the benefit Borrowers exercise on behalf of the Lenders as security for any amounts that become payable all of its other rights and remedies under the Letters of this Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedAgreement, the Revolving Credit Lenders will cause a Revolving Credit other Loan Documents and applicable law, in order to be made in the undrawn amount of satisfy all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersObligations.
Appears in 2 contracts
Sources: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 Sections 9.1, 9.4, 9.6, 9.12, 9.14, 10.1 through 10.6, 10.9 through 10.13, 11 and 29 hereof;
(d) the Borrower shall fail to perform any term, covenant or agreement contained herein (other than those specified in subsections (a), (b) and (c), above) and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2for 30 days;
(de) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 Section 14.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower in this Credit Agreement or any of their respective Subsidiaries in this Agreement or any the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower, its Subsidiaries, or the General Partner shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount greater than $500,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an aggregate amount greater than $500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers Borrower, its Subsidiaries, or REIT, (i) the General Partner shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Person(s) or of any substantial part of its assets, (ii) the assets of such Person's or shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, Person(s) and any such Person Person(s) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower, or any of its Subsidiaries, or the Borrowers or REIT or adjudicating any such Person, General Partner bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Person(s) in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured not consecutive, any final judgment against the Borrower, any of its Subsidiaries, or unbonded final judgments against Parent Borrower or any Subsidiary Borrower the General Partner that, either individually or with other outstanding final judgments, undischarged, against such Person(s) exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lk) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in the Collateral shall cease to be perfected or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the ▇▇▇▇▇▇▇ Group party thereto or any of the Borrowerstheir respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 250,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected reasonably likely to result in constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States of America District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States such District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment or revenue producing activities at any facility or facilities of the Borrower or any of its Subsidiaries if such event or circumstance would have a material adverse effect on the business, assets or condition (financial or otherwise) of the Borrower or such Subsidiary;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by the Borrower or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(p) an Event of Default under any of the other Loan Documents ▇▇▇▇▇▇▇ Group shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $250,000;
(q) a "Change of Control" under, and as defined in the Senior Indenture shall have occurred; or
(r) if the Borrower shall, at any time, own or control less than one hundred percent (100%) of the equity or ownership interests of each of its Subsidiaries which is a Guarantor; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, (x) the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents Documents, and (y) BKB may by notice in writing to the Borrower declare all amounts owing with respect to the Reimbursement Obligations to be, and in either case they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 14.1(h) or §12.1(j14.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Restaurant Co), Revolving Credit Agreement (Perkins Finance Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occuroccur and be continuing:
(a) the Borrowers Borrower or any Guarantor shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any Guarantor shall fail to pay any interest on the Loans Loans, the Commitment Fee, the Administrative Agent Fees, other fees or other sums due hereunder or under any of the other Loan Documents, within five (5) days Business Days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower (i) shall fail to comply with the any of its covenants contained in §§5.4, 5.5, 5.10, 6 or 7 hereof, or (ii) shall fail to comply with its covenant contained in §9.1 5.6 hereof and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2for thirty (30) days;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below12.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases or any obligations with respect to interest rate protection arrangements or exchange rate protection arrangements which, in the aggregate, represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $50,000,000 or more, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other in respect of any Capitalized Leases or evidencing any interest rate protection arrangement or exchange rate protection arrangement which in the aggregate represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $50,000,000 or more, and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hi) the Borrower or any of the Borrowers or REIT, its Subsidiaries (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or (2) shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
, or (iii) a if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and shall not have been dismissed within sixty (60) days, or the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries, exceeds in the aggregate $50,000,000;
(j) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a Lien in favor of such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(k) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part, or an offer to prepay, redeem or repurchase the aggregateSubordinated Debt in whole or in part shall have been made, exceed $25,000,000in each case in violation of the provisions of this Credit Agreement;
(l) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.or
Appears in 2 contracts
Sources: Credit Agreement (Staples Inc), Credit Agreement (Staples Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Term Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Term Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure continues for five (5) days;
(c) the Borrowers any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenant any of their respective covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 6.01, 6.06,6.07, 6.12, 6.14, 6.20 or 6.21;
(d) any of the Borrowers Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 any other Loan Document (other than those specified elsewhere in this Section 9.01) and such failure shall continue continues for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9days;
(e) any representation or warranty of the Borrowers shall fail to perform any other term, covenant Borrower or agreement contained herein any Guarantor in this Term Loan Agreement or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Term Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) an "Event of Default" shall have occurred and be continuing under the terms of the Credit Agreement;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and graceBorrower, any principal, interest Guarantor or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower, any Guarantor or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any Borrower. any Guarantor or any of their respective Subsidiaries or shall commence any case or other proceeding relating to it any Borrower, any Guarantor or any of their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower, any bankruptcyGuarantor or any of their respective Subsidiaries and (i) any Borrower, reorganization, arrangement, insolvency, readjustment any Guarantor or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within ninety continue undismissed, or unstayed and in effect, for a period of sixty (9060) days following the filing or commencement thereofdays; ;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such PersonBorrower, any Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower, any Guarantor or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(li) any of the Loan Documents or any material provision of any Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBank any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries or any Guarantor or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mj) any dissolution, termination, partial "Event of Default" or complete liquidation, merger or consolidation default (after notice and expiration of any period of the Borrowers shall occur or any salegrace, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or such Guaranteed Pension Plan provided in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents Documents, shall occuroccur and be continuing; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent Bank may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrowers, declare all amounts owing with respect to this Term Loan Agreement, the Notes, the Letters of Credit Term Loan Note and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowerseach Borrower and each Guarantor; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSection 9.01(g) or §12.1(jSection 9.01(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest notice from the Bank or other notice of any kind from any of action by the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 2 contracts
Sources: Term Loan Agreement (Sovran Self Storage Inc), Term Loan Agreement (Sovran Acquisition LTD Partnership)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Term Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall, except with respect to the failure to pay the outstanding principal amount of the Term Loans on the Maturity Date (for which no cure period shall exist), continue for a period of five (5) days;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days Term Loans, any fees or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) the Borrowers Borrower or the Guarantor shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given §8.1, 8.2 (other than, with respect to the Borrowers by Guarantor, moves within the Agent as State of California, or with respect to the Borrower, moves within Barbados), 8.4, 8.5, 8.6, 8.9, 8.12, 9 or 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in §3.2this Loan Agreement);
(d) any of the Borrowers Borrower, the Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 13.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower or the Guarantor by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantor or any of their respective Subsidiaries in this Loan Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(gf) Borrower, the Guarantor or any of the Borrowers their respective Subsidiaries shall (x) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of (i) any obligation for borrowed money or credit received or other Indebtednessin an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized Leases in an aggregate amount in excess of $20,000,000, or shall (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrower, the Guarantor or any of their respective Subsidiaries thereunder exceeds $20,000,000, or (y) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation referenced in clauses (i) through (iii) above for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(h) any of the Borrowers or REIT, (i) the Borrower, the Guarantor or any Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower, the Guarantor or such Material Subsidiary or of any substantial part of its assetsthe assets of the Borrower, (ii) the Guarantor or such Material Subsidiary or shall commence any case or other proceeding relating to it the Borrower, the Guarantor or such Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
; or (iii) a if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower, the Guarantor or any Material Subsidiary and, with respect to this clause (ii) only, (x) the Borrower, the Guarantor or such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Material Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or (y) such petition, application, case petition or proceeding application shall not have been dismissed within ninety thirty (9030) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating the Borrower, the Guarantor or any such Person, Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower, the Guarantor or any such Person Material Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower Borrower, the Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually with other outstanding final judgments, undischarged, against Borrower, the Guarantor or any of their respective Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked revoked, voided or rescinded or the Administrative Agent’s Liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor or any of the Borrowerstheir respective Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolutionLoan Party or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan in connection with the termination of a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $5,000,000, terminationor any Loan Party or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of §302(0(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower, the Guarantor or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 5,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a Lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower, the Guarantor or any Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower, the Guarantor or any of their respective Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower, the Guarantor or any of their respective Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) Borrower, the Guarantor or any Change of Control their respective Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against Borrower, the Guarantor or any of their respective Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower, the Guarantor or such Subsidiary included in the Borrowing Base or any assets of the Borrower, the Guarantor or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $5,000,000; or
(p) an Event a Change of Default under any of the other Loan Documents Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Loan Agreement, the Notes, the Letters of Credit Term Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower and the Guarantor; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable payable, automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 2 contracts
Sources: Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events or conditions (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans Revolving Credit Loans, any Fees, or other sums due hereunder or under any of the other Loan Documents, within five three (53) days Business Days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply (i) with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured §8.12, 9 (with the exception of 9.7) or 10, or (ii) within ten (10) days after written notice thereof shall have been given to the Borrowers by the Agent as provided delivery dates required therein, with any of its covenants contained in §3.2§8.4 or 8.9;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below13.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries set forth in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedrepeated (with such qualifications applicable at such time);
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or in respect of any Capitalized Leases or other IndebtednessIndebtedness in the aggregate amount of $20,000,000 or more, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or in respect of any Capitalized Leases or other Indebtedness and in the aggregate amount of $20,000,000 or more for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one or more uninsured or unbonded consecutive days, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries not covered by insurance that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries not covered by insurance exceeds in the aggregate, exceed aggregate $25,000,0003,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or if the Administrative Agent’s security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries party thereto or any of their respective members or stockholders (as the Borrowerscase may be), or any court of competent jurisdiction or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $3,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $3,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), provided, that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 3,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would reasonably be expected to have a Material Adverse Effect;
(m) a Change of Control shall occur;
(n) the sum of the outstanding amount of the Revolving Credit Loans, the Swing Line Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (a) the Total Commitment at such time and (b) the Borrowing Base at such time and the Borrower does not remedy such situation (by payment of the amount set forth in § 3.2 or otherwise) within ten (10) days;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would reasonably be expected to have a Material Adverse Effect;
(p) an Event of Default under the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, for which the other Loan Documents shall occurpunishment in such case could include the forfeiture of any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $7,000,000; or
(q) the number of cost equivalent units (or CEUs) included in the fleet of containers owned by the Borrower or managed by the Borrower on behalf of third-parties (such CEUs to be calculated by Borrower consistently with the current manner in which it calculates CEUs on behalf of third-party owners of fleets that it manages), shall, as of the last business day of any calendar month, be less than 300,000; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided provided, that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (SeaCube Container Leasing Ltd.), Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9, and with respect to a failure to comply with §9.1 and or §9.11 only, such failure shall continue uncured for five (5) Business Days after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2such occurrence;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g12.1(f), involve involves singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of (i) prior to the occurrence of the IPO Event, $25,000,0001,000,000.00, or (ii) from and after the occurrence of the IPO Event, $5,000,000.00;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,0001,000,000.00 per occurrence or during any twelve (12) month period prior to the occurrence of the IPO Event, or $5,000,000.00 per occurrence or during any twelve (12) month period from and after the occurrence of the IPO Event;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one 1,000,000.00 prior to the occurrence of the following shall apply with respect to such event: IPO Event, or $5,000,000.00 from and after the occurrence of the IPO Event and (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the forfeiture to the United States of America of (i) any assets of the Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any Change of Control shall occur;occur without the consent of the Required Lenders; or
(pq) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallLenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 2 contracts
Sources: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9.1 9, and with respect to a failure to comply with §9.1, §9.2 and §9.4 only, such failure shall continue uncured for five (5) Business Days after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2such occurrence;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g12.1(f), involve involves singly or in the aggregate (i) any obligations for borrowed money Indebtedness or credit received under Derivative Contracts (other than Non-Recourse Indebtedness) or other (ii) Non-Recourse Indebtedness totaling in excess of $25,000,00025,000,000.00 or greater;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty forty-five (6045) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise by the Borrower or any Guarantor other than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 10,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the forfeiture to the United States of America of (i) any assets of the Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any Change of Control shall occur;
(pq) any default, material misrepresentation or breach of warranty by the Borrower as the subordinate lender under any Subordination Agreement; or
(r) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallLenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Jernigan Capital, Inc.), Credit Agreement (Jernigan Capital, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.29;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g12.1(f), involve involves singly or in the aggregate obligations for borrowed money totaling $25,000,000.00 of Indebtedness or credit received or other Indebtedness totaling in excess of $25,000,000more;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding excess of $25,000,000 10,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any Change of Control shall occur;; or
(pq) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallLenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 1 contract
Sources: Credit Agreement (GTJ REIT, Inc.)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail fall to pay any principal of of, or premium, if any, on the Loans Notes when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;; or
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit Notes or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;; or
(c) the Borrowers Borrower or any of its Subsidiaries shall fail to comply with the covenant any of its other covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to this Agreement or any of the Borrowers by the Agent as provided in §3.2;other Loan Documents; or
(d) any representation or warranty of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant in this Agreement or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;; or
(ge) the Borrower or any of the Borrowers its Subsidiaries shall fail (i) to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness or Contingent Obligations in an amount equal to or greater than $5,000,000.00 in the aggregate for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or shall fail (ii) to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof Contingent Obligations in an amount equal to or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or greater than $5,000,000.00 in the aggregate obligations for borrowed money and such failure shall have resulted in such obligation becoming or credit received or other Indebtedness totaling in excess of $25,000,000;being declared due and payable prior to the date on which it would otherwise have become due and payable; or
(hf) the Borrower or any of the Borrowers or REITits Subsidiaries, (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of its assetsthe assets of any thereof, (ii2) shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
(ig) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the Borrowers or REIT its Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower or any such Person of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and the Borrower or any such Person of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) 60 days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person of its Subsidiaries, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries, that, either individually with other outstanding uninsured final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregateaggregate $2,000,000.00; or
(j) except as permitted in this Agreement, exceed $25,000,000;any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or any of its Subsidiaries, or any sale, transfer or other disposition of any of the assets of the Borrower or any of its Subsidiaries; or
(i) 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 institution of proceedings is, in the opinion of the Majority Holders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, and, in the case of a Reportable Event, the continuance of such Reportable Event unremedied for 30 days after notice of such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA is given or, in the case of institution of proceedings, the continuance of such proceedings for 30 days after commencement thereof, (ii) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, or (iii) any other event or condition shall occur or exist with respect to a Single Employer Plan and in each case in clauses (i) through (iii) above, such event or condition, together with all other such events or conditions, if any, could subject the Borrower or any of its Subsidiaries to any tax, penalty or other liabilities in the aggregate material in relation to the business, operations, property or financial or other condition of the Borrower or of the Borrower and its Subsidiaries taken as a whole; or
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or as permitted by this Agreement or with the express prior written agreement, consent or approval of the Required LendersMajority Holders, or any action at law, suit or in equity or other legal proceeding to cancel, terminate, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries or any of their respective stockholders, partners or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Holders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(hSection 9.1(f), §12.1(iSection 9.1(g) or §12.1(jSection 9.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLenders.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation or any amounts on the Overdraft Facility when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers shall fail to pay any interest on the Loans within five (5) days Loans, the Commitment Fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.ss.8, 10.1, 10.2, 10.4, 10.5.1, 10.5.3, 10.7, 10.9, 10.12, 10.13, 10.15, 10.16, 10.17, 10.18, 11 or 12;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
15.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Company by the Agent;
(e) any representation or warranty of any Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount in excess of $1,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) any Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, examiner or receiver for it of any Borrower or any of its Subsidiaries or of any substantial part of the assets of any Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it any Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution dissolution, examinership or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) any Insolvency Event shall occur, or any Borrower or any of its Subsidiaries shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, its Subsidiaries and any such Person Borrower or any of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower or any of its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower or any Subsidiary of any Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000;1,000,000.
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolutionBorrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, terminationor any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) any Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of such Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of such Borrower or such Subsidiary;
(o) any Change Borrower or any of Control its Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against such Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of such Borrower or such Subsidiary included in the Borrowing Base or any assets of such Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(p) an Event the Company shall at any time, legally or beneficially own less than one hundred percent (100%) of Default under the capital stock of Holdings, GenRad Ireland, and any Domestic Subsidiary which is a Guarantor, and, after the AutoDiagnos Acquisition has been consummated, AutoDiagnos, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of each such other Person; or Holdings shall at any time, legally or beneficially own less than one hundred percent (100%) of the capital stock of the other Loan Documents UK Borrowers, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital stock of each such other UK Borrower; or
(q) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the -98- Securities and Exchange Commission under said Act) of twenty percent (20%) or more of the outstanding shares of common stock of the Company; or, during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to constitute a majority of the board of directors of the Company; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Company declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iss.ss.15.1(g) or §12.1(j15.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genrad Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any other fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Documents, within ten (10) days after notice from Agentthe same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower or the Guarantor shall fail to comply with the any covenant contained in §9.1 Section 9, and such failure shall continue uncured for thirty (30) days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers Borrower or the Guarantor or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other material term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified above in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan DocumentsSection 12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticethe Borrower by the Agent;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantor or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, the Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(gthis Section 12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(gthis Section 12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,0005,000,000.00;
(hg) the Borrower, the Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantor or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower, the Guarantor or REIT or adjudicating any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Person, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrower, the Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceeds in the aggregate, exceed aggregate $25,000,0001,000,000.00;
(lk) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor or any of the Borrowersits holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower or the Guarantor or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Borrower other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower, the Guarantor or any of the Mortgaged Properties which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse effect on the ability of the Borrower or the Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) the Borrower shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such person, including the Mortgaged Property;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantor or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(op) any Change Joel ▇▇▇▇▇▇▇▇▇▇, ▇▇nn▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ch▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇uc▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Mich▇▇▇ ▇▇▇▇, ▇▇eir family members or estate planning trusts established for their benefit, shall in the aggregate own, directly or indirectly, less than ten percent (10.0%) of Control shall occurthe issued and outstanding partnership interests or shares of the Borrower and the Guarantor, as applicable, on a consolidated basis;
(pq) an Either of the Chairman or Chief Executive Officer of the Borrower approved by the Majority Banks on the Closing Date shall cease to be the Chairman or Chief Executive Officer, as applicable, of the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld; or
(r) any Event of Default under as defined in any of the other Loan Documents Documents, shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower (i) declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower and (ii) require the Borrower to immediately cash collateralize all outstanding Letters of Credit or obtain replacement letters of credit for such Letters of Credit, all in a manner satisfactory to the Majority Banks; provided that in the event of any Event of Default specified in §12.1(hSection 12.1(g), §12.1(iSection 12.1(h) or §12.1(jSection 12.1(i), all such amounts shall become immediately due and payable automatically and the Borrower shall be required to immediately so cash collateralize or replace all outstanding Letters of Credit forthwith, without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers shall fail The failure of any Borrower to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity maturity, or the failure of any Borrower to pay any principal of the Loans at any other date fixed for paymentpayment within two (2) Business Days of such date;
(b) the Borrowers shall fail The failure of any Borrower to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity maturity, or the failure of any Borrower to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents at any other date fixed for paymentpayment within two (2) Business Days of such date;
(c) the Borrowers Any Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 ss.ss.7.3, 7.5 and such failure shall continue uncured 7.9 hereof within five (5) Business Days after written notice thereof shall have of such failure has been given to the Borrowers by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Any Borrower shall fail to perform comply with any of its covenants contained in any other termprovision of ss.7, covenant ss.8 or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9ss.9 hereof;
(e) Any Borrower or any of the Borrowers Subsidiary shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowss.12) or any of the covenants contained in the any other Loan Documents), and such failure shall continue Documents for thirty (30) days after Borrower receives from Agent written notice thereofof such failure has been given to the Borrowers by the Agent; provided, and in however, such cure period shall be extended for an additional thirty (30) days if the case of a default that cannot be cured Borrower or such Subsidiary has diligently commenced such cure but is unable to complete same within such the initial thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured and such cure can be completed within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety thirty (9030) days from Borrower’s receipt of Lender’s original noticeday period;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrowers, the Parent or any of their respective Subsidiaries Subsidiary in this Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, Agreement is determined by the issuance of any Letter of Credit or any of the other Loan Documents shall prove Agent to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) Any Borrower, the Parent or any of the Borrowers Subsidiary shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in excess of $1,000,000.00, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in excess of $1,000,000.00, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) Any Borrower, the Parent or any of the Borrowers or REIT, (i) Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower, the Parent or any Subsidiary or of any substantial part of its assetsthe assets of any Borrower, (ii) the Parent or any of the Subsidiary or shall commence any case or other proceeding relating to it any Borrower, the Parent or any Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person Borrower, the Parent or any Subsidiary and any Borrower, the Parent or any Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein;
(i) The filing of any case or other proceeding against any of the Borrowers, the Parent or any Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, effect and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall is not have been discharged or dismissed within ninety thirty (9030) days following the filing or commencement thereof;
(j) of its commencement; a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such PersonBorrower, the Parent or any Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower, the Parent or any Subsidiary, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against any Borrower, the Parent Borrower or any Subsidiary Borrower that, either individually with other outstanding final judgments, undischarged, against any Borrower, the Parent or any Subsidiary exceeds in the aggregate, exceed aggregate $25,000,0002,500,000.00;
(lk) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of Borrower, the BorrowersParent or any Subsidiary, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of Borrower, the Borrowers to pay money Parent or any Subsidiary to the PBGC or on such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (xi) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (yii) a trustee shall have been appointed by the United States District Court to administer such Plan; or (ziii) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(m) Any Borrower, the Parent or any Subsidiary shall be indicted for a United States federal crime, a punishment for which could reasonably include the forfeiture of any assets of any Borrower, the Parent or such Subsidiary, the effect of which could reasonably be expected to affect in any material way (i) the conduct by the Parent and its Subsidiaries, taken as a whole, of its business in the ordinary course, (ii) the Collateral, or (iii) the financial condition of the Parent and its Subsidiaries, taken as a whole;
(n) the termination or attempted termination of any guaranty executed by a Guarantor; or
(o) any Change of in Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; . then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and and, upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers Lead Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iss.12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Revolving Credit Agreement (Sunglass Hut International Inc)
Events of Default and Acceleration. If any of the following events ---------------------------------- events (“"Events of Default” " or, if the giving of notice or the lapse of time or ------ -- ------- both is required, then, prior to such notice or lapse of time, “"Defaults”") shall -------- occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans Loan when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loan, any Fees, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for five (5) days;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 (S)5.5, the first sentence of (S)5.6 or (S)5.10;
(d) the Borrower or any of its Subsidiaries shall fail to comply with any of the covenants set forth in (S)5.4 or (S)6 hereof and such failure shall continue uncured for thirty (30) days after written the earlier to occur of (i) the Borrower or such Subsidiary becoming aware of such failure or (ii) the Borrower receiving notice thereof shall have been given to of such failure from the Borrowers by the Agent as provided in §3.2Administrative Agent;
(de) BH shall at any time have failed to maintain a long term senior unsecured non-credit enhanced debt rating of at least AA, as determined by Standard & Poor's, and Aa2, as determined by ▇▇▇▇▇'▇;
(f) BH, the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowS)9.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereofof such failure has been given, and in respectively, to BH or the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fg) The BH Guaranty shall be terminated, cancelled, revoked, repudiated or rescinded;
(h) any material representation or warranty made by or on behalf of BH, the Borrowers Borrower or any of their respective its Subsidiaries in this Loan Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gi) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any capitalized leases, singly or shall in the aggregate, in excess of $10,000,000 or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any capitalized leases, singly or in the aggregate, in excess of $10,000,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hj) FNV Capital shall fail to pay at maturity, or within any applicable period of grace, any obligation when due evidenced by the FINOVA Loan Documents, or shall fail to observe or perform any material term, covenant or agreement contained in any of the Borrowers FINOVA Loan Documents which has resulted in the holder or REITholders thereof or of any obligations issued thereunder accelerating the maturity thereof;
(k) BH, (i) the Borrower or any of its Subsidiaries or FNV Capital shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of BH, the Borrower or any of its Subsidiaries or FNV Capital or of any substantial part of the assets of BH, the Borrower or any of its assets, (ii) Subsidiaries or FNV Capital or shall commence any case or other proceeding relating to it BH, the Borrower or any of its Subsidiaries or FNV Capital under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against BH, the Borrower or any such Person under of its Subsidiaries or FNV Capital and BH, the Borrower or any bankruptcyof its Subsidiaries or FNV Capital, reorganizationas applicable, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jl) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating BH, the Borrower or any of the Borrowers its Subsidiaries or REIT or adjudicating any such Person, FNV Capital bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of BH, the Borrower or any such Person Subsidiary of the Borrower or FNV Capital in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(km) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments undischarged against the Borrower or any of its Subsidiaries, exceeds in the aggregate, exceed aggregate $25,000,00050,000,000;
(ln) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of BH, LNC or the BorrowersBorrower, or any court or any other governmental or regulatory authority Governmental Authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mo) BH and LNC shall at any dissolutiontime, terminationlegally and beneficially, partial own, directly or complete liquidationindirectly, merger or consolidation of any less than one hundred percent (100%) of the Borrowers shall occur or any sale, transfer or other disposition membership interests of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occurBorrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Loan Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.payable
Appears in 1 contract
Sources: Loan Agreement (Finova Group Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents (other than principal) within ten five (105) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentsame shall become due and payable;
(c) the Borrowers Borrower or the Company shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to Section 7.5, Section 7.7, Section 7.13, Section 7.20, Section 8 or Section 9 hereof or the Borrowers by the Agent as provided in §3.2first or second sentences of Section 7.6;
(d) any of the Borrowers Borrower or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 12) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives written notice of such failure from Agent written notice thereof, and in to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers or Borrower in this Agreement, any of their respective Subsidiaries in this Agreement or any the other Loan Document, Documents or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in -51- connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) (i) any "Event of Default", as such term is defined in the Existing Credit Facility, shall have occurred and be continuing under the Existing Credit Facility, whether or not the maturity of any obligations issued thereunder have been accelerated; or (ii) the Borrower, the Company, any Guarantor, any of the Borrowers Related Companies or any Unconsolidated Entity shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or Recourse Indebtedness (other amount on account of any obligation for borrowed money or credit received or other Indebtednessthan the Existing Credit Facility), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation Recourse Indebtedness (other than the Existing Credit Facility) for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described , and in §12.1(g) shall not constitute an Event of Default unless any event, such failure to performshall continue for thirty (30) days, together with other failures to perform as described in §12.1(g), involve singly or in unless the aggregate obligations for borrowed money or credit received or other amount of all such defaulted Recourse Indebtedness totaling in excess of is less than $25,000,0005,000,000.00;
(hg) the Borrower, the Company, any Guarantor, any of the Related Companies or any Unconsolidated Entity shall fail to pay at maturity, or within any applicable period of grace, any Indebtedness other than Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing Indebtedness other than Recourse Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Indebtedness other than Recourse Indebtedness plus the amount of any unsatisfied judgments is less than $15,000,000.00;
(i) any of the Borrowers Borrower, the Company or REIT, (i) any Guarantor shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or of any substantial part of its assets, (ii) properties or shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein therein, or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such petition, application, case or proceeding event shall not have been dismissed within ninety (90) days following the filing or commencement thereofa Material Adverse Effect;
(ji) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating the Borrower, the Company, or any such Person, Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower, the Company, or any such Person Guarantor in an involuntary case under federal bankruptcy laws as now or hereafter constitutedconstituted or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower or any Subsidiary the Borrower that, either individually with other outstanding uninsured final judgments, undischarged, against the Borrower, the Company or any of the Related Companies, exceeds in the aggregate, exceed aggregate $25,000,0005,000,000.00;
(lk) if any of the Loan Documents or any material provision of any Loan Documents shall be canceledunenforceable, cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial one or complete liquidation, merger more ERISA Events occurs which individually or consolidation of any of in the Borrowers shall occur aggregate results in or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event might reasonably would be expected to result in liability of the Borrower or any of its ERISA Affiliates in excess of $5,000,000 at any one time during the Borrowers to pay money to term of this Agreement; or if, at any one time, there exists an amount of unfunded pension liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the PBGC or such aggregate for all Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one Plans (excluding for purposes of the following shall apply such computation any Guaranteed Pension Plans with respect to such event: which assets exceed benefit liabilities), which exceeds $5,000,000;
(x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (zm) the PBGC Borrower or any Guarantor shall have instituted proceedings be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower;
(n) the Borrower shall fail to terminate pay, observe or perform any term, covenant, condition or agreement contained in any agreement, document or instrument evidencing, securing or otherwise relating to any Indebtedness of the Borrower to any Lender (other than the Obligations) within any applicable period of grace provided for in such Guaranteed Pension Planagreement, document or instrument;
(o) any Change of Control Material Adverse Effect shall occur;
(p) an any "Event of Default under Default", as defined in any of the other Loan Documents shall occur; or
(q) any Collateral Document shall for any reason cease to create a valid Lien on any of the Collateral purported to be covered thereby or, except as permitted by the Loan Documents, such Lien shall cease to be a perfected and first priority Lien or the Borrower or any Guarantor shall so state in writing; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Requisite Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §Sections 12.1(h), §12.1(i) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or action by the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersRequisite Lenders.
Appears in 1 contract
Sources: Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, within two (2) Business Days after the day on which the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2[Section]8, 9 or 10;
(d) the Borrower or any of the Borrowers or any of their respective Subsidiaries other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 [Section]13.1) for twenty (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3020) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective Subsidiaries the other Transaction Parties in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Transaction Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers other Transaction Parties shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation obligations for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of the other Transaction Parties or of any substantial part of its assets, (ii) the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to it the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of the other Transaction Parties and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, other Transaction Parties bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one or more uninsured or unbonded days, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of the other Transaction Parties that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Transaction Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, or the Agent's security interest in a substantial portion of the Securities shall cease to be perfected, or shall cease to have the priority contemplated by the Stock Pledge Agreement, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Transaction Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersother Transaction Parties party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Transaction Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower, Zycon or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower, terminationZycon or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of [Section]302(f)(1) of ERISA), provided the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of any of the Borrowers to pay money Borrower or Zycon to the PBGC or such Guaranteed Pension the Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court court of a trustee to administer such Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any Change of Control the other Transaction Parties shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) an Event any person or group of Default under any persons (within the meaning of Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than ninety percent (90%) of the shares of the capital stock of Hadco Acquisition (on a fully diluted basis), whether before or after the consummation of the Merger; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(i[Sections]13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hadco Acquisition Corp)
Events of Default and Acceleration. If any of the following ---------------------------------- events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or and/or lapse of time, “"Defaults”") shall occur:
(a) if the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrowers Borrower shall fail to pay any interest on interest, Facility Fees, Letter of Credit Fees, or any other fees or other amounts owing under any of the Loans Loan Documents within five (5) days of the date that Business Days after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrowers Borrower or any of its Subsidiaries shall fail to comply with the covenant covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2(S)(S)10.15, 11, or 12 hereof;
(d) any of if the Borrowers Borrower or any of their respective its Subsidiaries shall fail to comply with the covenants contained in (S)(S)10.12 or 10.14 hereof, and such failure shall be continuing for a period of ten (10) days;
(e) if the Borrower shall fail to perform any other term, covenant or agreement herein contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 subsections (includinga), without limitation(b), §12.2 below) or in the other Loan Documents(c), and (d) above) and such failure shall continue for has not been remedied within thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have has been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, given to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan Borrower by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension PlanManaging Agent;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) CML, any of the Borrowers or any of their Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, the Unused Line Fees, any Letter of Credit Fee, the Administrative Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) CML or any of the Borrowers shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to secs.9.1, 9.4, 9.5, 9.7, 9.9, 9.12, 9.14 through 9.20, 10 or 11 or any of the Borrowers by covenants contained in any of the Agent as provided in §3.2Mortgages;
(d) CML, any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 ss.
14.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrowers by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of CML, any of the Borrowers or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) CML, any of the Borrowers or any of their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of (i) any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, and the aggregate amount of such obligations and Capitalized Leases is in excess of $2,000,000, or shall (ii) any Indebtedness under the Wisconsin Documents or the Subordinated Debt, or fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation indebtedness or obligations described in subclauses (i) or (ii) of this clause (f), for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) CML, any of the Borrowers or REIT, (i) any of their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of CML, any of the Borrowers or any of their Subsidiaries or of any substantial part of its assetsthe assets of CML, (ii) any of the Borrowers or any of their Subsidiaries or shall commence any case or other proceeding relating to it CML, any of the Borrowers or any of their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) 75 shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against CML, any such Person under of the Borrowers or any bankruptcyof their Subsidiaries and CML, reorganization, arrangement, insolvency, readjustment any of debt, dissolution the Borrowers or liquidation or similar law any of any jurisdiction, now or hereafter in effect, and any such Person their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating CML, any of the Borrowers or REIT or adjudicating any such Person, of their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of CML, any such Person of the Borrowers or any of their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower CML, any of the Borrowers or any Subsidiary Borrower of their Subsidiaries that, either individually with other outstanding final judgments, undischarged, against CML, any of the Borrowers or any of their Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0002,000,000;
(lj) the holders of (i) any of the Subordinated Debt shall accelerate prior to the maturity thereof or any of the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part, or CML shall become obligated to prepay, redeem or repurchase, in whole or in part, any of the Subordinated Debt, or (ii) any of the Wisconsin Subordinated Note shall accelerate prior to the maturity thereof or any of the Wisconsin Subordinated Note shall be prepaid, redeemed or repurchased in whole or in part, or CML shall become obligated to prepay, redeem or repurchase, in whole or in part, any of the Wisconsin Subordinated Note;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of CML, any of the BorrowersBorrowers or any of their Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolutionCML, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers or any of their Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any salestrike, transfer lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other disposition casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of the assets revenue producing activities at any facility of CML, any of the Borrowers shall occur other than as permitted under or any of their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the terms business or financial condition of this Agreement CML, such Borrower or the other Loan Documentssuch Subsidiary;
(n) with respect there shall occur the loss, suspension or revocation of, or failure to renew, any Guaranteed Pension Planlicense or permit now held or hereafter acquired by CML, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers or any of their Subsidiaries if such loss, suspension, revocation or failure to pay money to renew would have a material adverse effect on the PBGC business or financial condition of CML, such Borrower or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension PlanSubsidiary;
(o) CML, any Change of Control the Borrowers or any of their Subsidiaries shall occurbe indicted for a state or federal crime, or any civil or criminal action otherwise shall have been brought against CML, any of the Borrowers or any of their Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of such Person included in any of the Borrowing Bases or any assets of such Person not included in the Borrowing Bases but having a fair market value in excess of $2,000,000;
(pi) CML shall at any time, legally or beneficially own less than one hundred percent (100%) of the shares of Capital Stock of the Borrowers (other than NA), or (ii) NT shall at any time, legally or beneficially own less than one hundred percent (100%) of the common stock of NA; PROVIDED, that (i) the sale of NT by CML in compliance with the provisions of ss.10.5.2(e), (ii) an NT Spin-Off in compliance with the provisions of ss.10.4.2, and (iii) the issuance of Capital Stock of NT to NT's senior management in compliance with the provisions of ss.10.15, shall not result in an Event of Default under this paragraph (p),
(q) any Change in Control shall have occurred, or any Change in Control (as defined in the Subordinated Debentures) shall have occurred;
(r) there shall have occurred any materially adverse change in the condition (financial or otherwise), operations, assets, liabilities and/or prospects of CML and its Subsidiaries since May 2, 1998 other than as disclosed to the other Loan Documents shall occur; then, Administrative Agent and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing (including the Monthly Budget attached hereto) on or prior to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.Restatement Effective Date;
Appears in 1 contract
Events of Default and Acceleration. If Upon the occurrence of any of the following events (“Events of Default” ordefault, if all or any part of the giving Indebtedness shall, at the option of Lender, become immediately due and payable without notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occurdemand:
(a) If default occurs in the Borrowers shall fail to pay payment or performance of any principal of the Loans Indebtedness, when the same and as it shall become be due and payable, whether at the stated date of maturity Maturity or any accelerated date of maturity or at any other date fixed for payment;otherwise.
(b) If default occurs in the Borrowers shall fail performance of any other obligation to pay Lender under any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) Instrument or under any other mortgage, security agreement, loan agreement, assignment, guaranty or other agreement that now or in the future secures or relates to any of the other Loan Documents within ten Indebtedness or that evidences, secures or relates to any guaranty of any of the Indebtedness (10"SECURITY DOCUMENTS") days after notice from Agentor if default occurs in the performance of any obligation to Lender under this Mortgage, whether at or not Lender shall have performed the stated date obligation on Mortgagor's behalf, under PARAGRAPH 8 of maturity this Mortgage, and whether or not Mortgagor shall have reimbursed Lender for any accelerated date of maturity payments or at any other date fixed for payment;expenses it incurred in curing the default.
(c) If any warranty, representation or statement that has been or is in the Borrowers shall fail future made to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers Lender by the Agent as provided in §3.2;
(d) Mortgagor or by any guarantor of all or part of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained Indebtedness ("GUARANTOR") in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein this Mortgage or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Security Document, or any report, certificatecredit application, financial statementstatement or otherwise, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;furnished.
(gd) If Mortgagor shall default in payment of the principal of or interest on any indebtedness for borrowed money now or in the future owed to any person other than Lender.
(e) If Mortgagor or any Guarantor or any of the Borrowers partners of a Guarantor that is a partnership shall fail to pay when due (includingdissolve, without limitation, at maturity), become insolvent or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors.
(f) If all or any material part of the premises shall be damaged or destroyed by fire or other casualty, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become dueregardless of insurance coverage for the loss, or shall petition be taken by condemnation or apply for power of eminent domain.
(g) If any law or government regulation shall impose a tax or assessment upon mortgages or debts secured by mortgages.
(h) If any guaranty that now or in the appointment future secures payment or performance of a trustee or other custodian, liquidator or receiver for it all or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets Indebtedness shall be terminated or limited, for any reason, without the written consent or agreement of Lender. If a voluntary or involuntary case in Bankruptcy or receivership shall be started by or against Mortgagor or any Guarantor or any partner of any thereofGuarantor that is a partnership, then the entire Indebtedness shall automatically become immediately due and payable, without notice or demand. All or any part of the Indebtedness also may become, or a case or other proceeding shall may be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents declared to be, and they shall thereupon forthwith become, immediately due and payable without presentmentunder the terms and conditions contained in any Security Document, demand, protest Instrument or other notice of agreement that at any kindtime evidences, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) secures or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal relates to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersIndebtedness.
Appears in 1 contract
Sources: Mortgage (MTR Gaming Group Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment (including, without limitation, amounts due under §2.7 and §3.8);
(b) the Borrowers shall fail to pay any interest on the Loans, or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within , and such failure continues for five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentdays;
(c) the Borrowers any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenant any of their respective covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.28.1, 8.6, 8.7, 8.8, 8.9, 8.12, 8.21, 8.22, 8.23, 9 or 10;
(d) any of the Borrowers Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 13) and such failure shall continue continues for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9days;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by of any Borrower or on behalf of the Borrowers any Guarantor or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any Guarantor or any of the Borrowers their respective Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, in respect of any Capitalized Leases (x) in respect of any Recourse obligations or shall credit or (y) in respect of any Without Recourse obligations or credit which total in an aggregate amount in excess of $10,000,000; or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $10,000,000, in either case for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute , or an "Event of Default unless Default" shall occur and be continuing under the Note Purchase Agreement that permits acceleration; or (iii) default in any payment obligation under a Hedge Agreement, and such failure default shall continue after any applicable grace period contained in such Hedge Agreement or any other agreement or instrument relating thereto; or (iv) becomes obligated to performpurchase or repay Indebtedness (other than the Obligations) before its regular maturity or before its regularly scheduled dates of payment in an aggregate principal amount of at least $10,000,000, together with as a consequence of the occurrence or continuation of any event or condition (other failures than the passage of time or the right of the holder of Indebtedness to perform as described in §12.1(gconvert such Indebtedness into equity interests or the exercise by either Borrower or any Subsidiary of a contractual right to prepay such Indebtedness), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;.
(hg) any Borrower, any Guarantor or any of the Borrowers or REIT, (i) their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower, any Guarantor or any of their respective Subsidiaries or of any substantial part of its assetsthe properties or assets of any Borrower, (ii) any Guarantor or any of their respective Subsidiaries or shall commence any case or other proceeding relating to it any Borrower, any Guarantor or any of their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower, any bankruptcyGuarantor or any of their respective Subsidiaries and (i) any Borrower, reorganization, arrangement, insolvency, readjustment any Guarantor or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within ninety continue undismissed, or unstayed and in effect, for a period of sixty (9060) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such PersonBorrower, any Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower, any Guarantor or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any Borrower, any Guarantor or any of their respective Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) any of the Loan Documents or any material provision of any Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersLenders (or all Lenders if required under §26), or any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries or any Guarantor or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial "Event of Default" or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowers shall occur extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or any sale, transfer or other disposition of the assets of provided in any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents, shall occur and be continuing;
(nl) any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred Event, or a failure to make a required installment or other payment (within the meaning of Section 302 and Section 303 of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of any Borrower or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000, and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;; or
(om) (i) any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Sections 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of (a) 20% or more of the outstanding shares of common stock of Sovran, or (b) 33% or more in the aggregate of the outstanding limited partnership interests of SALP (other Loan Documents than by Sovran and its wholly-owned Subsidiaries); (ii) Holdings ceasing to be the sole general partner and sole investment manager of SALP; (iii) Sovran and its wholly-owned Subsidiaries cease to beneficially own 100% of the capital stock of Holdings; or (iv) during any period of twelve consecutive calendar months, individuals who were directors of Sovran on the first day of such period (together with directors whose election by the Board of Directors or whose nomination for election by Sovran's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Restatement Date or whose election or nomination for election was previously so approved) shall occurcease to constitute a majority of the board of directors of Sovran; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowerseach Borrower and each Guarantor; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded Administrative Agent or action by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Administrative Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Events of Default and Acceleration. If any of the following events ---------------------------------- (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Revolving Credit Loans, the commitment fee or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for three (3) Business Days;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2(S)(S)7.1, 7.4, 7.5.1, 7.9, 7.14, 8 or 9;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowS)12.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in an amount in excess of $250,000 in the aggregate, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days thirty days, whether or not consecutive, any final judgment against the Borrower or any of its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate $1,000,000, or the Borrower shall pay an uninsured judgment or enter into one or more uninsured or unbonded final judgments against Parent Borrower or settlements of any Subsidiary Borrower that, either individually or litigation with the aggregate judgment and/or settlement amounts not otherwise covered by insurance of more than $1,000,000 in the aggregate, exceed $25,000,000;
(lj) if any of the Loan Documents loan documents shall be canceled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of (S)302(f)(1) of ERISA), provided -------- that the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory -49- agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral if such Collateral is not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) the Borrower or any Change of Control its Subsidiaries shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $1,000,000;
(p) an Event of Default under the Borrower shall at any time, legally or beneficially own less than 100% of the other Loan Documents capital stock of each Subsidiary, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of such Subsidiary; or
(q) prior to the initial public offering of the capital stock of the Borrower (the "IPO"), the Investors shall occurat any time, legally or beneficially own less than fifty percent (50%) of the capital stock of the Borrower, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Borrower and subsequent to the IPO, any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of twenty percent (20%) or more of the outstanding shares of the common stock of the Borrower, or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent mayshall, and upon the request of the Required Lenders shallMajority Banks, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default -------- specified in §12.1(h), §12.1(i(S)13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Answer Think Consulting Group Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, any Fees, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its respective covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given Sections 9.5, 9.7.1, 9.9, 10 or 11 (except as to the Borrowers covenants contained in Section 10.7, for which the Borrower's failure to comply shall only be deemed an Event of Default should the Borrower fail to cure the failure within the earlier of thirty (30) days or the time period required by Environmental Laws), with any of its covenants contained in Section 9.4 for a period in excess of five (5) days, or with any of the Agent as provided covenants contained in §3.2;any of the Mortgages for three (3) days.
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 14.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount in excess of $500,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an aggregate amount in excess of $500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person of its Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000500,000;
(lj) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000 or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by the Borrower or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) an Event of Default under the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the other Loan Documents Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $500,000; or
(q) a Change of Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(hSections 14.1(g), §12.1(i14.1(h) or §12.1(j14.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers or their Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, the fronting fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers or their Subsidiaries shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to Section 9, 10 or 11 or any of the Borrowers by covenants contained in any of the Agent as provided Mortgages or in §3.2the Debenture;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 Section 14.1 or those which by their terms expressly exclude any grace period for any non-compliance therewith) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to TransTechnology by the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by of or on behalf any of the Borrowers or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrowers or their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any of the Borrowers or REIT, (i) their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay 84 -77- or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Borrower or Subsidiary or of any substantial part of its assets, (ii) the assets of such Borrower or Subsidiary or shall commence any case or other proceeding relating to it any of the Borrowers or their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against or any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution the Borrowers or liquidation or similar law of any jurisdiction, now or hereafter in effect, their Subsidiaries and any such Person of the Borrowers or their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers or REIT or adjudicating any such Person, their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person of the Borrowers or their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured not consecutive, any final judgment against any of the Borrowers or unbonded final judgments against Parent Borrower or any Subsidiary Borrower their Subsidiaries that, either individually or with other outstanding final judgments, undischarged, against the Borrowers and their Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders (and, notwithstanding anything herein to the contrary, if any guaranty shall be cancelled, terminated, revoked or rescinded without the consent of the Lenders), or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the BorrowersBorrowers or their Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of TransTechnology or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 250,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) any of the Borrowers or their Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order has a material adverse effect on the business or financial condition of such Borrower or Subsidiary;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any of the Borrowers or their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of such Borrower or Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Borrowers or their Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of such Borrower or Subsidiary;
(o) any Change of Control the Borrowers or their Subsidiaries shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against any of the Borrowers or their Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of such Borrower or Subsidiary having a fair market value in excess of $1,000,000;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the NotesLoans, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSection 14.1(g) or §12.1(j14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans Loans, any Letter of Credit Fee, any Facility Fee, any Utilization Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within five (5) days of the date that after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 8 or 9;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
12.1) for twenty (20) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other in respect of any Capitalized Leases, which in the aggregate represents Indebtedness and of $2,000,000 or more, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or if any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) Significant Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any Significant Subsidiary or of any substantial part of its assets, (ii) the assets of the Borrower or any Significant Subsidiary or shall commence any case or other proceeding relating to it the Borrower or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under Significant Subsidiary and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Significant Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating the Borrower or any such Person, Significant Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Significant Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty forty-five (6045) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Documents Guaranties shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $5,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 5,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any Significant Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(n) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $5,000,000; or
(o) any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 30% or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 12.1(g) or §12.1(j12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableRevolving Credit Loans, any reimbursement obligations with respect to the Letters of Credit or any fees Fees, or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days Business Days after notice from Agentthe same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2(S)(S)8.1, 8.2, 8.3, 8.4, 8.5, 8.9, 8.12, 8.13, 8.14, 8.15, 8.17, 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan DocumentsS)13.1), and such failure to perform shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticedays;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000250,000 in excess of any available insurance coverage;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of (S)302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance or would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) the Borrower or any Change of Control its Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $100,000; or
(p) an Event a Change of Default under any of the other Loan Documents Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i(S)(S)13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Documents, within ten (10) days after notice from Agentof the date the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, provided that no such grace period shall apply to any such payments due at maturity;
(c) the Borrowers shall fail to comply with remargin the covenant contained Loan as required in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.22.6;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9[Intentionally Omitted.];
(e) any of the Borrowers or the Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries the Guarantor in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) without limiting the provisions of this Agreement prohibiting the incurrence of Indebtedness by the Borrowers, any of the Borrowers (i) shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, ) any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or (ii) shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, the Guarantor (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT the Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT the Guarantor or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower any of the Borrowers or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,000250,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the BorrowersBorrowers or the Guarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money or the Guarantor to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 250,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) any Borrower, the Guarantor or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of any Borrower or the Guarantor;
(o) the Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of Guarantor’s intention to attempt to cancel or terminate the Guaranty, or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty, or any other Loan Document;
(p) any event, act, condition or occurrence of whatever nature, whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences, whether or not related, that causes a Material Adverse Effect including, without limitation, the acceleration of the debt evidenced by the CHCI Subordinate Notes or any other Indebtedness of Guarantor individually or in the aggregate in excess of $30,000,000 or any adverse determination in any litigation, arbitration, or governmental investigation or proceeding involving Borrowers or the Guarantor;
(q) any Change of Control shall occur;; or
(pr) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Loan Agreement (Comstock Homebuilding Companies, Inc.)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:: (
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
; (b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loans, the facility fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
; (c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
sect.sect.6, 7 or 8; (d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this sect.11) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Agent; (e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
; (gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is boundbound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of capital stock of the Borrower or other Margin Stock for so long as such stock constitutes Margin Stock), evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that (g) the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly Borrower or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
; (jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
; (ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000;
1,000,000; (lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
; (m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
; (l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days; (m) there shall occur any material damage to, or loss, theft or destruction of, any assets of the Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries on a consolidated basis; (n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries on a consolidated basis; (o) the Borrower or any Change of Control its Subsidiaries shall occur;
be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower and its Subsidiaries having a fair market value in excess of $5,000,000; or (p) an Event (i) any person or group of Default under any persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended, but other Loan Documents than J▇▇ ▇▇▇▇▇▇ and/or R▇▇▇▇▇▇ ▇▇▇▇▇▇) shall occur; then, have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and upon any such Event Exchange Commission under said Act) of Default, the Agent may, and upon the request twenty percent (20%) or more of the Required Lenders shall, by notice in writing to outstanding shares of common stock of the Borrowers declare all amounts owing with respect to this Agreement, Borrower; (ii) J▇▇ ▇▇▇▇▇▇ and/or R▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have acquired beneficial ownership (within the Notes, the Letters meaning of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived Rule 13d-3 promulgated by the Borrowers; provided that in the event Securities and Exchange Commission under said Act) of any Event of Default specified in §12.1(h), §12.1(itwenty-five percent (25%) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any more of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance outstanding shares of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit common stock of the Lenders as security for Borrower; or (iii) during any amounts that become payable under the Letters period of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.twelve
Appears in 1 contract
Sources: Revolving Credit Agreement (New England Business Service Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay (i) on any Payment Date any principal payment, or (ii) on the date on which the principal balance of the Loans when Revolving Credit Notes have been accelerated in accordance with Section 13.1 hereof, the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentthen Aggregate Note Principal Balance;
(b) the Borrowers Borrower shall fail to pay on any Payment Date any interest payment, Commitment Fee or Upfront Fee then due and payable on the Loans within five Revolving Credit Notes and the continuation of such default for more than three (53) days of the date that the same Business Days after such amounts shall have become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) on any Payment Date, the Borrowers Aggregate Note Principal Balance (after giving effect to any payments of principal made on such Payment Date) exceeds an amount equal to the Asset Base then in effect and such condition shall have then existed for a period of thirty (30) consecutive days;
(d) default in the payment of any amounts due and owing to the Lenders of any Revolving Credit Notes other than the amounts described in clauses (a) and (b) above, and the continuation of such default for more than fifteen (15) Business Days after the date on which a Senior Designated Officer of the Borrower received written notice of non-payment;
(e) the Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, 9.8 or Section 10;
(df) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (which they are required to perform (other than those specified is not otherwise addressed in this Section 13) which failure materially and adversely affects the other subclauses interests of this §12 (including, without limitation, §12.2 below) the Loan Servicer or in the other Loan Documents), Lenders and such failure shall continue continues for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of such failure has been given to a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf Senior Designated Officer of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedBorrower;
(g) any representation or warranty of the Borrowers Borrower made in any Loan Document shall fail to pay prove incorrect in any material respect when due made which materially and adversely affects the interest of the Loan Servicer or any Lender and which (including, without limitation, at maturity), or within any applicable if curable) remains unremedied for a period of thirty (30) days after the first date on which a Senior Designated Officer of the Borrower has received written notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) the Borrower, any Restricted Subsidiary of the Borrowers Borrower or REITthe Guarantor shall commence a voluntary case concerning itself under the Federal Bankruptcy Code; or an involuntary case is commenced against the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor and the petition is not controverted within ten (i10) shall make an assignment for the benefit of creditorsdays, or admit is not dismissed within sixty (60) days, after commencement of the case; or a custodian (as defined in writing its general inability to pay or generally fail to pay its debts as they mature or become duethe Bankruptcy Code) is appointed for, or shall petition takes charge of, all or apply substantially all of the property of the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor; or the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor and such proceeding remains undismissed for a period of sixty (60) days; or the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor suffers any appointment of a trustee any custodian or other custodian, liquidator or receiver the like for it or any substantial part of its assetsproperty to continue undischarged or unstayed for a period of 60 days; or the Borrower, (ii) shall commence any case Restricted Subsidiary of the Borrower or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment the Guarantor makes a general assignment for the benefit of debt, dissolution creditors; or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize is taken by the Borrower, any Restricted Subsidiary of the Borrower or in furtherance the Guarantor for the purpose of effecting any of the foregoing;
(i) a petition or application shall be filed for Change of Control occurs without the appointment of a trustee or other custodian, liquidator or receiver of any prior consent of the Borrowers or REIT or any substantial part of Loan Servicer and the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereofMajority Lenders;
(j) the Security Agreement or the Lien purported to be created thereby shall become or be adjudged by a decree court of competent jurisdiction to be invalid or order is entered appointing a trustee, custodian, liquidator or receiver unenforceable against the Borrower for any reason other than any action taken by the Loan Servicer or any Lender or the failure of the Borrowers Loan Servicer or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in Lender to take any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constitutedaction within its control;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured judgments or unbonded final judgments decrees shall be entered against Parent the Borrower, any Restricted Subsidiary of the Borrower or the Guarantor involving a liability (to the extent not paid when due or covered by a reputable and solvent insurance company (with any Subsidiary Borrower that, either individually portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in the aggregateexcess of Twenty Million Dollars ($20,000,000) for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, exceed $25,000,000discharged or stayed or bonded pending appeal for any period of thirty (30) consecutive days;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof TAL Group or the express prior written agreementBorrower fails to make any payment when due (beyond the applicable grace or cure period with respect thereto, consent if any) or approval defaults in the observance or performance (beyond the applicable grace or cure period with respect thereto, if any) of the Required Lendersany payment obligation, or any action at lawother agreement or covenant with respect to Indebtedness that, suit individually or in equity or other legal proceeding to cancelthe aggregate for all such Persons, revoke or rescind any exceeds Twenty Million Dollars ($20,000,000) and the holder(s) of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofsuch Indebtedness have accelerated such Indebtedness;
(m) any dissolutionlaw, terminationrule or regulation shall render invalid, partial or complete liquidationpreclude enforcement of, merger any material provision of this Credit Agreement, the Guaranty or consolidation of any other Loan Document or impair performance of the Borrowers shall occur obligations of the Borrower or TAL Group under this Credit Agreement or under any other Loan Document, in each case, for any reason other than any action taken by the Loan Servicer or any sale, transfer Lender or other disposition the failure of the assets of Loan Servicer or any of Lender to take any action within its control, or the Borrowers shall occur other than as permitted Guarantor repudiates its obligations under the terms of this Agreement or the other Loan Documents;
Guaranty (n) with respect subject to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred Section 9.2); and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent Loan Servicer may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(jSections 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersServicer.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any Guarantor shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees Fees, or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days after notice from Agentthe same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 8.4.1, 8.10, 8.11, 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 13.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in an amount in excess of $50,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in an amount in excess of $50,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Material Worldwide Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Material Worldwide Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Material Worldwide Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Material Worldwide Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Material Worldwide Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Material Worldwide Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Material Worldwide Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Material Worldwide Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty forty five (6045) days one days, whether or more uninsured or unbonded not consecutive, any final judgments and unappealable judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries which are not otherwise covered by insurance exceeds in the aggregate, exceed aggregate $25,000,00050,000,000;
(lj) any of an ERISA Event shall have occurred that, in the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval opinion of the Required Lenders, or any action at lawwhen taken together with all other ERISA Events that have occurred, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event could reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: a Material Adverse Effect; or
(x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (yk) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lexmark International Inc /Ky/)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 ss.ss.10.1, 10.4, 10.6, 10.12, 10.14, 11.1 through 11.6, 11.9, 11.10, 12 and 29 hereof; 64 -57-
(d) PFR or the Borrower shall fail to perform any term, covenant or agreement contained herein (other than those specified in subsections (a), (b) and (c), above) and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2for 30 days;
(de) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 ss.
15.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by of PFR or on behalf of the Borrowers Borrower in this Credit Agreement or any of their respective Subsidiaries in this Agreement or any the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of PFR, its Subsidiaries, or the Borrowers General Partner shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount greater than $250,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an aggregate amount greater than $250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of PFR, its Subsidiaries, or the Borrowers or REIT, (i) General Partner shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Person(s) or of any substantial part of its assets, (ii) the assets of such Person's or shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, Person(s) and any such Person Person(s) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured not consecutive, any final judgment against PFR, any of its Subsidiaries, or unbonded final judgments against Parent Borrower or any Subsidiary Borrower the General Partner that, either individually or with other outstanding final judgments, undischarged, against such Person(s) exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lk) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Perkins Group party thereto or any of the Borrowerstheir respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 250,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) any Change of Control the Perkins Group shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $250,000; or
(q) if any person other than the General Partner or PRI shall at any time be or become a general partner of the Borrower, or if any Person other than PFR shall at any time be or become a limited partner of the Borrower;
(pr) an Event if any Person other than the General Partner or PRI shall at any time be or become a general partner of Default under PFR; or
(s) if any Person and its Affiliates (other than PRI) shall collectively, whether directly or indirectly, own or control 50% or more of the other Loan Documents shall occurequity or ownership interests of PFR; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, (x) the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents Documents, and (y) BKB may by notice in writing to the Borrower declare all amounts owing with respect to the Reimbursement Obligations to be, and in either case they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(hss.ss.15.1(h), §12.1(i15.1(i) or §12.1(j15.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Perkins Family Restaurants Lp)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation or fail to purchase and pay for or Redeliver Consigned Precious Metal when the same shall become due and payable or required, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment or Redelivery;
(b) the Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans or Consignment Fees or Gold Fronting Fees or Consignment Premiums on Consigned Precious Metal, the commitment fees, any Letter of Credit Fee, the Agents' fee, or other sums due hereunder or under any of the other Loan Documents, within one (1) Business Day after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.ss.11.4(a), (b), (c), (d), (f), (g), (h), or (i) or ss.ss.11.5.1, 11.6(a), 11.12, 11.14, 11.15, 12 or 13;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other material term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowss.
16.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeby the Agents;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, (A) any principal, interest obligation in respect of the Subordinated Notes or (B) any other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in each case under this clause (B) in excess of $1,000,000.00, or shall (ii) fail to observe or perform any material term, covenant or agreement contained (A) in the Indenture or the Subordinated Notes or (B) in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in each case under this clause (B) in excess -110- of $1,000,000.00, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of its Subsidiaries (other than the Borrowers or REIT, (iMexican Subsidiary) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries (other than the Mexican Subsidiary) or of any substantial part of the assets of the Borrower or any of its assets, Subsidiaries (iiother than the Mexican Subsidiary) or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries (other than the Mexican Subsidiary) under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries (other than the Mexican Subsidiary) and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries (other than the Mexican Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of its Subsidiaries (other than the Borrowers or REIT or adjudicating any such Person, Mexican Subsidiary) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower (other than the Mexican Subsidiary) in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000.00;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Collateral Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) if the Borrower or any dissolutionERISA Affiliate shall incur any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000; if the Borrower or any ERISA Affiliate shall be assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, termination, partial or complete liquidation, merger or consolidation of if any of the Borrowers following shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agents determine in their reasonable discretion that such event reasonably would (A) could be expected to result in liability of any of the Borrowers to pay money Borrower to the PBGC or such Guaranteed Pension the Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrower or any Change of Control its Subsidiaries (other than the Mexican Subsidiary) shall occur;be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days; or
(pm) an Event of Default under ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners II L.P. and its affiliates shall at any time, legally or beneficially own less than 51% of the other Loan Documents shares of the Voting Stock of the Borrower or shall occurat any time cease to be able to elect at least a majority of the members of the board of directors of the Borrower; then, and upon in any such Event event (i) the Borrower shall purchase all Consigned Precious Metal in accordance with the provisions of Defaultss.5.4 hereof and (ii) so long as the same may be continuing, the Agent Agents may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.,
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §§9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and -9.11 applicable to such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9Person;
(ed) any of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, including without limitation, limitation at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption or purchase thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $25,000,00020,000,000.00 or Non- Recourse Indebtedness totaling in excess of $50,000,000.00;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing; provided that the events described in this §12.1(g) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof; provided that the events described in this §12.1(h) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; provided that the events described in this §12.1(i) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Parent, the Borrower or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00015,000,000.00;
(lk) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the BorrowersBorrower or the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of Parent, the Borrowers Borrower or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of Parent, the Borrowers Borrower or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 10,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower, any Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any Eligible Real Estate included in the calculation of the Unencumbered Asset Value;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document;
(p) any Change of Control shall occur;; or
(pq) an Event of Default under any of the other Loan Documents shall occur or
(r) an “Event of Default” (as defined in the Senior Unsecured Credit Agreement) shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loans, any Letter of Credit Fee, the commitment fee, or the Agent's fee due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment within three (3) days after the same shall become due and payable;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Section 9.6, 10 or 11;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 14.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or in respect of any Capitalized Leases in excess of $500,000 (other Indebtednessthan the Loan Documents), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in excess of $500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, unstayed for more than sixty (60) days one days, any final unpaid judgment (from which all appeals have been taken and determined or more uninsured or unbonded final judgments as to which all time for appeals has lapsed) against Parent the Borrower or any Subsidiary of its Subsidiaries which, with other outstanding final judgments shall continue unsatisfied and in effect, (net of uncontested insurance coverage) against the Borrower that, either individually or any of its Subsidiaries exceeding in the aggregate, exceed aggregate $25,000,000500,000;
(lj) the holders of First Mortgage Bonds shall accelerate the maturity of all or any part of the First Mortgage Bonds, or the First Mortgage Bonds (other than the Collateral Bonds) shall be prepaid, redeemed or repurchased in whole or in part;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in a substantial portion of the Collateral Bonds shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lendersthereof, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower as a party thereto or any of the Borrowersits stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower or any sale, transfer ERISA Affiliate shall fail to pay when due an amount or other disposition amounts aggregating in excess of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event $100,000 which it shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers become liable to pay money to the PBGC or such Guaranteed Pension to an Employee Benefit Plan in under Title IV of ERISA; or notice of intent to terminate an Employee Benefit Plan or Employee Benefit Plans having an aggregate amount exceeding Unfunded Vested Liability in excess of $25,000,000 and one 500,000 shall be filed pursuant to Title IV of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan ERISA by the Borrower; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or for the appointment by the appropriate United States District Court of cause a trustee to be appointed to administer any such Guaranteed Pension PlanEmployee Benefit Plan or Employee Benefit Plans or a proceeding shall be instituted by a fiduciary of any such Employee Benefit Plan or Employee Benefit Plans to enforce Section 515 of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or (y) a trustee condition shall have been appointed exist by the United States District Court to administer such Plan; or (z) reason of which the PBGC shall have instituted proceedings would be entitled to terminate obtain a decree adjudicating that such Guaranteed Pension PlanEmployee Benefit Plan or Employee Benefit Plans must be terminated;
(om) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than sixty (60) days; or
(i) a judgement creditor shall obtain possession of any material portion of the mortgaged property (the "Mortgaged Property") referred to in the Mortgage by any means, including, without limitation, levy, distraint, replevin or self-help, (ii) any Change foreclosure or other remedial action in respect of Control or affecting the Mortgaged Property shall occur;
(p) an Event of Default under any be commenced by or on behalf of the other Loan Documents holders of the Second Mortgage Bonds or the trustee under the General and Refunding Mortgage Indenture, (iii) any material portion of the Mortgage Property shall occur; be taken by eminent domain or condemnation, (iv) the Mortgage shall cease to be in full force and effect or the Borrower shall disavow its obligations thereunder or shall contest the validity or enforceability thereof, (v) the trustee under the Mortgage (the "First Mortgage Trustee") shall cease, in respect of any material portion of the Mortgaged Property, to have a valid and perfected first priority security interest therein, (vi) the security interest of the First Mortgage Trustee in any material portion of the Mortgaged Property shall otherwise become impaired or unenforceable, or (vii) any provision of the Mortgage, the Supplemental Indenture or the Collateral Bonds shall be amended, supplemented, waived or otherwise modified in any respect except to the extent expressly permitted by the Pledge Agreement. then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(hSection Section 14.1(g), §12.1(i14.1(h) or §12.1(j14.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bangor Hydro Electric Co)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower or any of its Subsidiaries shall fail to pay (i) when and as required to be paid herein, any amount of principal of the Loans when any Loan or any Reimbursement Obligation, or (ii) within five (5) days after the same shall become becomes due, any interest on any Loan or on any Reimbursement Obligation, any fee due and payable, whether at the stated date of maturity hereunder or any accelerated date of maturity other amount payable hereunder or at under any other date fixed for paymentLoan Document;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any of §§8.4, 8.5, 8.6, 8.8, 8.10, 8.11, 9 or 10;
(c) the Borrower or any of its Subsidiaries shall fail to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days;
(d) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any of its Subsidiaries herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made;
(e) the Borrower or any Subsidiary of the Borrower shall (A) fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Hedge Agreements) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $10,000,000, or (B) fail to observe or perform 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 occurs, the effect of which it is bound, evidencing or securing any obligation for borrowed money or credit received default or other Indebtedness and event is to cause, or to permit the holder or holders thereof of such Indebtedness (or a trustee or agent on behalf of any obligations issued thereunder have accelerated such holder or holders) to cause, with the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event giving of Default unless notice if required, such failure Indebtedness to performbe demanded or to become due or to be repurchased, together with other failures to perform as described in §12.1(gprepaid, defeased or redeemed (automatically or otherwise), involve singly or in the aggregate obligations for borrowed money an offer to repurchase, prepay, defease or credit received or other redeem such Indebtedness totaling in excess of $25,000,000to be made, prior to its stated maturity;
(hf) the Borrower or any of the Borrowers or REIT, its Subsidiaries (iother than any Subsidiary which is a Non-Significant Subsidiary) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jg) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating its Subsidiaries (other than any such Person, Subsidiary which is a Non-Significant Subsidiary) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kh) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments is entered against Parent the Borrower or any Subsidiary Borrower that(i) a final judgment or order for the payment of money in an aggregate amount exceeding $10,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), either or (ii) any one or more non-monetary final judgments that would have individually or in the aggregate, exceed $25,000,000a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order that are not promptly stayed, or (B) there is a period of twenty (20) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(li) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made;
(j) any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full of all the Loan Documents Obligations, shall cease to be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof full force and effect; or the express prior written agreement, consent Borrower or approval any of its Subsidiaries shall contest in any manner the Required Lendersvalidity or enforceability of any Loan Document; or the Borrower or any of its Subsidiaries shall deny that it has any or further liability or obligation under any Loan Document, or any action at law, suit in equity or other legal proceeding shall purport to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofDocument;
(mk) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(ni) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event occurs with respect to a Guaranteed Pension Plan or Multiemployer Plan which has resulted or could reasonably would be expected to result in liability of the Borrower under Title IV of ERISA to the Guaranteed Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) the Borrower or any of the Borrowers ERISA Affiliate shall fail to pay money when due, after the expiration of any applicable grace period, any installment payment with respect to the PBGC or such Guaranteed Pension its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan5,000,000;
(ol) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of the business of the Borrower and its Subsidiaries, taken as a whole, and such order shall continue in effect for more than thirty (30) days; or
(m) a Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Tranche A Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(f) or §12.1(j), 13.1(g) all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any reimbursement obligations with respect to the Letters of Credit when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10other than those described in §12.1(a)) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 99.1 - 9.7;
(ed) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Request or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any a Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement agreement, or any other event occurs, contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or under a Derivatives Contract or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, settlement or purchase thereof; provided that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to performpay or perform or the occurrence of such event, together with other failures to pay or perform or the occurrence of such events as described in this §12.1(g12.1(f), involve singly or in the aggregate (i) obligations for borrowed money Indebtedness (other than Non-Recourse Indebtedness) totaling in excess of $25,000,000.00 or credit received or other (ii) Non-Recourse Indebtedness totaling in excess of $25,000,00050,000,000.00;
(hg) the Borrower, the Guarantors or any of the Borrowers or REIT, their respective Material Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantors or any of the Borrowers or REIT their respective Material Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors or REIT any of their respective Material Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days days, whether or not consecutive, one or more uninsured or unbonded final judgments judgments, orders or awards against Parent Borrower the Borrower, the Guarantors or any Subsidiary Borrower that, either individually of their respective Subsidiaries that exceed $50,000,000.00 per occurrence or in the aggregate, exceed $25,000,000aggregate in any calendar year;
(lk) any of the Loan Documents or the Contribution Agreement (if any) shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement (if any), or to contest or challenge the validity or enforceability of any of the Loan Documents or the Contribution Agreement (if any) shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement (if any) is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any of the Borrowers Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any of the Borrowers Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, any of the Borrowers to pay money Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 20,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) any of the Unencumbered Borrowing Base Properties;
(o) any Change of Control shall occur;; or
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, the Letter of Credit Liabilities shall become due and payable and the Borrower will deposit into the Collateral Account cash in an amount equal to the amount of all Letter of Credit Liabilities. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 1 contract
Sources: Credit Agreement (Mid America Apartment Communities Inc)
Events of Default and Acceleration. If Section 7.1. The occurrence of any one or more of the following events (“Events shall constitute an Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occurDefault hereunder:
(a1) Default in the Borrowers shall fail to pay payment of any principal principal, interest or other charges in respect of any of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
Obligations within fifteen (b) the Borrowers shall fail to pay any interest on the Loans within five (515) days of the due date that thereof.
(2) Default in the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit observance or performance or any fees or other sums due hereunder (other than any voluntary prepayment) or under any undertaking of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained Borrower set forth in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure Article V herein which shall continue for the thirty (30) day cure a period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and of such
(3) Default in the case observance or performance of any undertaking of Borrower set forth in Article VI hereof.
(4) Default in the observance or performance of any undertaking of Borrower herein set forth or set forth in the Note, the Security Agreement or any other document further evidencing or securing the Loans which are not otherwise specifically addressed in this Section 7.1 and which default shall continue for a default that cannot be cured within such period of thirty (30) day period despite days after notice of such default from Bank to Borrower’s diligent efforts but .
(5) If any representation, warranty or information made or furnished by Borrower to Bank is susceptible of being cured within ninety or shall be untrue or misleading in any material respect.
(906) days of Borrower’s receipt of Agent’s original notice, then If Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REIT, (i) shall make an assignment for the benefit of creditors, or admit if a petition in writing its general inability bankruptcy or to pay effect a plan or generally fail to pay its debts as they mature arrangement with creditors is filed by or become due, against Borrower; or if Borrower shall petition or apply for or permit the appointment of a receiver or trustee or other custodian, liquidator or receiver for it or any substantial part of its property or assets, (ii) or if any such receiver or trustee shall commence have been appointed for any case of its property or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution assets; or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of if any of the foregoing;
(i) a petition above actions or application proceedings whatsoever are commenced by or against Borrower. Notwithstanding the above, Borrower shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one to dismiss or more uninsured otherwise cure any involuntary petition or unbonded final judgments other involuntary action filed or commenced against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;it.
(l7) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted Default under the terms of this Agreement any other financing or loan facility between the other Loan Documents;
(n) Bank and the Borrower, including but not limited to that certain $200,000.00 facility with respect to Standby Letters of Credit of even date herewith which default continues beyond any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of applicable grace or cure period.
Section 7.2. If any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon then or at any time thereafter, while such Event of DefaultDefault shall continue, or at any time Bank shall in good faith determine that the prospect of payment or performance by Borrower under the documentation further evidencing or securing the Loan evidenced hereby is impaired, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Bank may declare all amounts owing with respect Obligations to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately be due and payable payable, without presentmentnotice, protest, presentment or demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBorrower.
Appears in 1 contract
Sources: Revolving Loan Agreement (Gunther International LTD)
Events of Default and Acceleration. If any of the following events ----------------------------------- (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans Loan when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of the Guarantors shall fail to pay any interest on the Loans within five (5) days Loan or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.ss.6.1, 6.2, 6.5, 6.6, 6.7, 6.9, 6.12, 6.13, 6.14, 7 or 8 hereof;
(d) the Borrower or any of its Subsidiaries or any of the Borrowers or any of their respective Subsidiaries Guarantors shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowss.
11.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries or any of the Guarantors in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement, as such representation and warranty may be updated in writing from time to time by the Borrower or any advance of a Loan, the issuance of any Letter of Credit its Subsidiaries or any of the other Loan Documents Guarantors, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of its Subsidiaries or any of the Borrowers Guarantors shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in an aggregate amount in excess of $1,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received (including, without limitation, Senior Indebtedness) or other Indebtedness and in respect of any Capitalized Leases in an aggregate amount in excess of $1,000,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of its Subsidiaries or any of the Borrowers or REIT, (i) Guarantors shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or any of the Guarantors or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or any of the Guarantors or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries or any of the Guarantors under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution the Guarantors and the Borrower or liquidation any of its Subsidiaries or similar law any of any jurisdiction, now or hereafter in effect, and any such Person the Guarantors shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of its Subsidiaries or any of the Borrowers or REIT or adjudicating any such Person, Guarantors bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower or any of the Guarantors in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries or any of the Guarantors that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries or any of the Guarantors exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantors party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided that the Administrative Agent -------- determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries or any of the Guarantors shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries or any of the Guarantors if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect or a materially adverse effect on the business or financial condition of such Guarantor;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by the Borrower or any of Control shall occurits Subsidiaries or any of the Guarantors if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary or such Guarantor;
(p) an Event the Borrower or any of Default under its Subsidiaries or any of the other Loan Documents Guarantors shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries or any of the Guarantors, a punishment for which in any such case could include the forfeiture of any assets having a fair market value in excess of $500,000; or
(i) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 20% or more of the outstanding shares of common stock of FCI; or, during any period of twelve consecutive calendar months, individuals who were directors of FCI on the first day of such period shall cease to constitute a majority of the board of directors of FCI, or (ii) FCI shall at any time legally or beneficially, cease to own all of the issued and outstanding capital stock of FAC; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default -------- specified in §12.1(hss.ss.11.1(g), §12.1(i11.1(h) or §12.1(j11.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”") shall occur:
(a) the Borrowers if any Borrower shall fail to pay any principal of the Loans made to such Borrower or any L/C Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such default shall not have been remedied within one (1) 106 Business Day after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(b) if the applicable Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that or fees owing by such Borrower hereunder when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 payment and such failure default shall continue uncured not have been remedied within three (3) Business Days after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(c) if the Borrowers by shall fail to comply with any of the Agent as provided covenants contained in §3.2Sections 9.1, 9.2, 9.3, or 10.1 hereof;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of if the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform or pay any amounts (other than those specified in the other subclauses of this §12 subsections (including, without limitation, §12.2 below) or in the other Loan Documentsa), (b), and (c) above) and such failure shall continue for thirty not be remedied within twenty (3020) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower failure shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticethe Borrowers and Ryder by an Agent;
(fe) if any material representation representation, warranty or warranty certification made in writing by or on behalf of the Borrowers or any of their respective Subsidiaries Borrower contained in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed repeated and such representation, warranty or certification shall be material at the time it shall have been determined to have been false or incorrect, and if such false representation, warranty or certification or its adverse effects shall be susceptible of cure, the Borrowers shall not, within a period of twenty (20) days after written notice thereof has been given to the Borrowers and Ryder by the Administrative Agent, (i) have cured (to the satisfaction of the Majority Banks) the representation, warranty or certification and (ii) have cured the adverse effect of the failure of such representation, warranty or certification to have been true and correct when made or repeated;
(gf) if any of the Borrowers or any of Ryder's Consolidated Subsidiaries shall (i) fail to pay when due within the later of (including, without limitation, at maturity), or within A) three (3) Business Days after maturity and (B) three (3) Business Days after any applicable period of notice and grace, any principalIndebtedness, interest or other amount on account reimbursement obligation in respect of any obligation for borrowed money letter of credit or credit received or other Indebtednessthe aggregate amount of any Derivatives Obligation, in each case, in an aggregate amount greater than $50,000,000, or shall (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement one or more agreements by which it is bound, evidencing or securing any Indebtedness, reimbursement obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or in respect of any obligations issued thereunder have accelerated letter of credit or the maturity thereof; provided that the events described aggregate amount of any Derivatives Obligation, in §12.1(g) shall not constitute each 107 case, in an Event of Default unless such failure to performaggregate amount greater than $50,000,000, together with other failures to perform as described in §12.1(g), involve singly or resulting in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess acceleration of $25,000,000such Indebtedness;
(hg) if any of the Borrowers or REIT, (i) shall make any of Ryder's Consolidated Subsidiaries makes an assignment for the benefit of creditors, or admit admits in writing its general inability to pay or generally fail fails to pay its debts as they mature or become due, or shall petition petitions or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed applies for the appointment of a trustee or other custodian, liquidator or receiver of any such Person, or of the Borrowers or REIT or any substantial part of the assets of any thereof, such Person or a commences any case or other proceeding shall be commenced against relating to any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against any such Person shall indicate or any such Person indicates its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(jh) if a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers or REIT or adjudicating any such Person, of Ryder's Consolidated Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal the bankruptcy laws of any jurisdiction or any analogous proceeding, procedure or step is taken in any jurisdiction as now or hereafter constituted, and such decree or order remains in effect for more than sixty (60) days, whether or not consecutive;
(ki) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured not consecutive, any judgment or unbonded final judgments order against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any saleof Ryder's Consolidated Subsidiaries which, transfer with other outstanding judgments or other disposition of orders against any such Person exceeds in the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documentsaggregate $50,000,000;
(nj) if any judicial lien or attachment on the property of any Borrower or any of Ryder's Consolidated Subsidiaries in an amount of $50,000,000 or greater shall not be released or provided for to the satisfaction of the Administrative Agent and the Majority Banks within sixty (60) days after such lien or attachment shall have come into existence;
(k) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 50,000,000 and one of the following shall apply with respect to such event: (x) such event in the 108 circumstances occurring reasonably would be expected to result in could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC authorities shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(ol) if any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of fifty percent (50%) or more of the outstanding shares of common voting stock of Ryder; or, during any period of twelve consecutive calendar months, individuals who were directors of Ryder on the first day of such period shall cease to constitute a majority of the board of directors of Ryder (excluding any directors elected or nominated by such board); then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request written or telephonic (confirmed in writing) requests of the Required Lenders Majority Banks, shall, by written notice in writing to the Borrowers Borrowers, declare all amounts owing with respect to under this Agreement, the Notes, the Letters of Credit Agreement and the other Loan Documents Notes and all L/C Obligations to bebe forthwith due and payable, whereupon the same shall forthwith mature and they shall thereupon forthwith become, become immediately due and payable, together with accrued interest thereon, without presentment, demand, protest or notice, all of which are hereby waived by each of the Borrowers, provided that in the case of the occurrence of any event specified in paragraphs (g) or (h) of this Section 13.1, all such amounts outstanding hereunder and under the Notes shall become due and payable forthwith without the requirement of any such notice or the action of any Person and without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that . Upon written demand by the Majority Banks after the occurrence of any Event of Default, and automatically without the necessity of demand in the event of any Event of Default specified in §12.1(h), §12.1(iparagraphs (g) or §12.1(j)(h) of this Section 13.1, all such amounts Ryder shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of provide to the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Administrative Agent cash in an amount equal to the amount of aggregate L/C Obligations on all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the then outstanding Letters of Credit and all other Obligations, In issued for the event the Borrower fails to deliver such cash collateral, upon demand by Agent account of Ryder or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance any of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan its domestic Subsidiaries to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Administrative Agent as security Cash Collateral for any amounts that become payable under the Letters of Credit and all other such L/C Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers or any of their Subsidiaries shall fail to pay any interest on the Loans within five (5) days Loans, any Fees, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant any of their covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to §8.1, 8.4, 8.5, the Borrowers by the Agent as provided in §3.2first sentence of 8.6, 8.7, 8.12, 8.13, 8.14, 8.15, 8.16, 9 or 10;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 13.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent the earlier of (i) the date that written notice thereofof such failure has been given to the Borrowers by the Administrative Agent, and in (ii) the case date that an officer of any Borrower or any Subsidiary of a default that cannot be cured within Borrower becomes aware of such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticefailure;
(fe) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove be determined to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any Subsidiary of the Borrowers a Borrower shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money (including any amount owed under the Master Reimbursement Agreement, the H▇▇▇▇▇▇ Amended and Restated Note Agreement, the H▇▇▇▇▇▇ Signature Note Agreement Loans and the Silgan Payable) or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is boundbound (including the H▇▇▇▇▇▇ Amended and Restated Note Agreement, the Master Reimbursement Agreement, and the documents evidencing and securing the H▇▇▇▇▇▇ Signature Note Agreement Loans and the Silgan Payable), evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) any Borrower or any Subsidiary of the Borrowers or REIT, (i) a Borrower shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower or any Subsidiary of a Borrower or of any substantial part of its assets, (ii) the assets of any Borrower or any Subsidiary of a Borrower or shall commence any case or other proceeding relating to it any Borrower or any Subsidiary of a Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any Borrower or any Subsidiary of a Borrower and such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution Borrower or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower or any Subsidiary of a Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower or any Subsidiary of a Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one forty-five days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent any Borrower or any Subsidiary of a Borrower that, either individually with other outstanding final judgments undischarged against any Borrower or any Subsidiary of a Borrower, exceeds in the aggregate, exceed aggregate $25,000,000500,000;
(lj) any Borrower, any holder of H▇▇▇▇▇▇ Signature Note Agreement Loans, any holder of H▇▇▇▇▇▇ Amended and Restated Note Agreement Loans or any collateral agent (other than Bank of America, N.A.) shall breach any of its agreements or obligations under the Intercreditor Agreement;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent’s security interests or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any Subsidiary of the Borrowersany Borrower or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolutionBorrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, terminationor any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), provided that the Administrative Agent reasonably determines that such event reasonably would (A) could be expected to result in liability of the Borrowers or any of the Borrowers to pay money their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) any Borrower or any Subsidiary of any Borrower shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral which could have a Material Adverse Effect, (which is not covered by insurance for which the insurance company has confirmed coverage in writing) or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any Subsidiary of any Borrower if such cessation or curtailment of revenue producing activities could have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by any Borrower or any Subsidiary of Control a Borrower if such loss, suspension, revocation or failure to renew could have a Material Adverse Effect;
(p) any Borrower, any Subsidiary of a Borrower or any of Senior Management shall be indicted for a state or federal crime, or any criminal action shall otherwise have been brought against the Borrowers, any of their Subsidiaries or any Senior Management, a punishment for which in any such case could include the forfeiture of any assets of such Borrower or such Subsidiary included in the Borrowing Base or any assets of such Borrower, such Subsidiary or such Senior Management not included in the Borrowing Base but having a fair market value in excess of $100,000;
(q) any Adverse GMOI Event shall occur;
(pr) an Event any PACA Claim, PACA Claims or claim or claims under the California Producer’s Lien Law in excess of Default under $100,000 individually or in the aggregate shall be asserted against any Borrower or any Subsidiary of the other Loan Documents a Borrower; or
(s) a Change of Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§13.1(g), §12.1(i13.1(h) or §12.1(j13.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Seneca Foods Corp /Ny/)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of any of the Loans when after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans Loans, or any other fees or sums due hereunder or under any of the other Loan Documents, within five ten (510) days of the date that after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) Borrower or any of the Borrowers Guarantor or any of their respective Subsidiaries shall fail to perform or observe any other term, covenant covenant, condition or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 7.23 and such failure shall under this §12.1(c) shall, as to the particular covenant or covenants contained in the Master Loan Agreement not so performed or observed continue for beyond the thirty (30) day period of any grace or notice and cure period provided set forth in the preamble to Article 9 after written notice thereof shall have been given Master Loan Agreement with respect to the Borrowers by Agent as provided in the preamble to Article 9non-performance of such covenant;
(ed) the Borrower or any of the Borrowers Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticethe Borrower by the Agent;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective Subsidiaries Guarantor in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers Guarantor shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including, without limitation, any Derivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and (including, without limitation, any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment or purchase thereof; , provided that solely with respect to the Borrower and the Trust the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $25,000,00010,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(hg) the Borrower or any of the Borrowers or REITGuarantor, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower or REIT any Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower or REIT or adjudicating any such Person, Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower any of the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, against such Persons exceed in the aggregate, exceed aggregate $25,000,0001,000,000.00 with respect to any Subsidiary Guarantor and $10,000,000.00 with respect to the Borrower and the Trust;
(lk) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower, any Guarantor, any of the Borrowerstheir respective Subsidiaries or any of their respective holders of Voting Interests, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or any of the Borrowers shall occur Guarantor or any sale, transfer or other disposition of the assets of the Borrower or any of the Borrowers shall occur Guarantor other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against any Borrower or any Guarantor or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower or any Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) the Borrower or any Guarantor or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower or any Guarantor, including the Collateral;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money Guarantor to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; Plan or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(op) any a Change of Control shall occur;
(pq) an ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall cease to be active on a daily basis in the management of the Trust and the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default under (as defined in any of the other Loan Documents Documents) shall occur; or
(s) An “Event of Default” (as defined in the Master Loan Agreement) shall occur. then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower (in addition to the rights afforded under §12.3) declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Bridge Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for five (5) days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, 9.4 or §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower, the Guarantors or any of their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or to require the prepayment, purchase or redemption thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,00025,000,000.00;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00010,000,000.00;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the BorrowersBorrower or a Guarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) Borrower, any Change Guarantor or any of Control their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall occurbe indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the assets included in the calculation of the Unencumbered Asset Value;
(p) any Guarantor denies that it has any liability or obligations under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or cancel the Contribution Agreement or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document; or
(q) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If Upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers Borrower will be released to BorrowersBorrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans Revolving Credit Loans, the commitment fee, any Letter of Credit Fee or other sums due hereunder or under any of the other Loan Documents, within five three (53) days of after the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 Sections 7.1, 7.4(a), (b) and such failure (c), 7.5.1, 7.6 (a), 7.12, 7.14 or 7.16, 8 or 9;
(i) the Borrower shall continue uncured fail to comply with any of its covenants contained in Section 7.4 (other than those specified elsewhere in this Section 12.1) within five (5) days after written notice thereof shall have of such failure has been given to the Borrowers Borrower by the Agent as provided in §3.2;
Bank or (dii) any of the Borrowers Borrower or any of their respective Subsidiaries Guarantor shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 12.1) to which it is a party for twenty (20) days after written notice of such failure has been given to the other subclauses Borrower by the Bank;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in each case, in an individual principal amount of $1,000,000 or more, or shall (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an amount equal to or greater than the individual principal amount specified in clause (i) above for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an a general assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate in writing its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered by a court of competent jurisdiction appointing a any such trustee, custodian, liquidator or receiver for of the Borrower or any of its Subsidiaries or any substantial part of the Borrowers assets of the Borrower or REIT any of its Subsidiaries or adjudicating the Borrower or any such Person, of its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there a final judgment or judgments for the payment of money in excess of $1,000,000 in the aggregate (exclusive of judgment amounts covered by insurance) shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days be rendered by one or more uninsured courts, administrative tribunals or unbonded final judgments other bodies having jurisdiction against Parent the Borrower or any of its Subsidiaries and the same shall not be discharged (or provision shall not be made for such discharge) or vacated, or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof and the Borrower or the relevant Subsidiary Borrower thatshall not, either individually within said period of thirty (30) days, or in such longer period during which execution of the aggregatesame shall have been stayed, exceed $25,000,000appeal therefrom and cause the execution thereof to be stayed during such appeal;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or hereof or with the express prior written agreement, consent or approval of the Required LendersBank, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that it could reasonably be expected that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 500,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business, the Borrower or such Subsidiary shall have complied with such order and such order shall continue in effect for more than thirty (30) days and, with respect to a Subsidiary of the Borrower only, such order could reasonably be expected to result in a Material Adverse Effect; or
(m) any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common stock of the Borrower or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board of directors or whose nomination for reelection by the shareholders of the Borrower was approved by a vote of a majority of the directors of the Borrower then still in office who where either directors on the first day of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders shall, Bank may by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Revolving Credit Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 12.1(g) or §12.1(j12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for fifteen (15) calendar days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 99.2 -§9.12;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other (i) Recourse Indebtedness totaling in excess of $25,000,0005,000,000.00 or (ii) Non-Recourse Indebtedness in excess of $10,000,000.00 individually or in excess of $20,000,000.00 in the aggregate;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fifteen (6015) days during any calendar year, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent (x) the Borrower or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,0002,000,000.00 in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary Guarantor that, either individually or in the aggregate, exceed $2,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Majority Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any of the Pool Properties;
(p) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) Reserved;
(r) Reserved;
(s) Reserved;
(t) Reserved;
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not a Pool Property whose book value, either individually or in the aggregate, does not exceed $2,000,000.00;
(v) REIT shall fail to comply at any time with all requirements and Applicable Laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Control shall occur;; or
(py) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallMajority Lenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 1 contract
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans Revolving Credit Loans, the commitment fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within five three (53) days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 ss.ss.5.3, 7, 8 or 9 hereof, (other than ss.7.7 or ss.7.14 hereof) or any of the covenants contained in any of the Security Documents;
(i) the Borrower shall fail to comply with ss.7.7 or ss.7.14 hereof and such failure shall continue uncured after written notice thereof shall have been given to not be remedied for twenty (20) days or (ii) the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.12) for twenty (20) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in excess of $5,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in excess of $5,000,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described thereof and no waiver or forbearance arrangement shall be in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together effect with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000respect thereto;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded final judgments not consecutive, any final, nonappealable judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final, nonappealable judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests or liens in a substantial portion of the Collateral shall cease to be perfected or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability upon the termination of a Guaranteed Pension Plan to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $250,000 (provided that nothing in this clause shall preclude the Borrower or any ERISA Affiliate from making contributions in contemplation of any standard termination), terminationthe Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $250,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretion that such event reasonably would be expected (A) is likely to result in liability of any of the Borrowers to pay money Borrower to the PBGC or such Guaranteed Pension the Plan in an aggregate amount exceeding $25,000,000 250,000, and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any part of its business and such order shall have a Material Adverse Effect;
(m) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(i) at any time prior to a public offering of the Borrower's Equity Securities under the Securities Act (A) Lee ▇▇▇ll, legally or beneficially, own less than 33-1/3% of the Equity Securities of the Borrower which it owns on the Closing Date, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Borrower, (B) Lee ▇▇▇ll fail to maintain representation on the Board of Directors of the Borrower in the same proportion as its representation on the Closing Date or fails to maintain its corporate governance or control rights under ss.2 of the Stockholders Agreement, or (C) Lee ▇▇▇ll, when the Consolidated Revenue of the Borrower and its Subsidiaries attributable to the Advisory Agreements for the most recently ended fiscal quarter exceeds 10% of all Consolidated Revenue of the Borrower and its Subsidiaries for such fiscal quarter, cause an "assignment" of the Advisory Agreements under the Investment Company Act or the Advisers Act and such Advisory Agreements shall have not been extended or replaced with other Advisory Agreements with terms not materially less favorable to the Borrower and its Subsidiaries and applicable fee rates not materially less than the previous terms and applicable fee rates or (ii) at any time after a public offering of the Borrower's Equity Securities under the Securities Act Lee ▇▇▇ll, legally or beneficially, own less than 25% of the Equity Securities of the Borrower which it owns on the Closing Date, as adjusted pursuant to any stock 65 -58- split, stock dividend or recapitalization or reclassification of the capital of the Borrower; or
(o) any Change Guarantor denies that it has any liability or obligations under the Loan Documents to which it is a party, or shall notify the Agent or any Bank of Control the Guarantor's intention to attempt to cancel or terminate the Guaranty to which it is a party or shall occur;
(p) an Event of Default fail to observe any term, covenant, condition or agreement under any of the other Loan Documents shall occurDocument to which it is a party; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iss.ss.12.1(g) or §12.1(j)12.1(h) hereof, all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Freedom Securiteis Corp /De/)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within five (5) days of the date that after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given §7.1, 7.4, 7.5, 7.6 (as it relates to the Borrowers by the Agent as provided in §3.2corporate existence), 7.8, 8 or 9;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below12.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received (other than trade payables incurred in the ordinary course of business) or other Indebtednessin respect of any Capitalized Leases in an aggregate principal amount outstanding of $1,000,000 or more, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in an aggregate principal amount outstanding of $1,000,000 or more, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied (unless bonded) and unstayed, for more than sixty (60) days one forty-five days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $5,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $3,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event (A) is reasonably would be expected likely to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 5,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrower or any Change of Control its Subsidiaries shall occurbe enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(pm) an Event of Default under there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect; or
(n) any person or group of persons (within the other Loan Documents meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 20% or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i12.1(g) or §12.1(j12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Rogers Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers any Borrower shall fail to pay any principal of the Revolving Credit Loans, Swing Line Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) the Borrowers any Borrower or any of its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans within five (5) days or the Swing Line Loans, any fees or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) the Borrowers any Borrower shall fail to comply with the covenant (i) any of its covenants contained in §9.1 §8.1, 8.2 (other than, with respect to CAI, moves within the State of California or with respect to CAL, moves within Barbados), 8.4(e), 8.5, 8.9, 8.12, 9 or 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement or (ii) any of its covenants contained in §8.4 (except for clause (e) thereof) and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2unremedied for ten (10) days;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 13.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrowers by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers any Borrower or any of their respective its Subsidiaries in this Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any of the Borrowers its Subsidiaries shall (x) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of (i) any obligation for borrowed money or credit received or other Indebtednessin an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized Leases in an aggregate amount in excess of $20,000,000, (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrowers and their Subsidiaries thereunder exceeds $20,000,000, or shall (iv) any obligation under any documentation of Indebtedness incurred in connection with a Permitted Securitization in an aggregate amount in excess of $20,000,000 (including any “termination event”, “event of termination” or any default or event of default thereunder), or (y) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation referenced in clauses (i) through (iv) above for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or require the events described in §12.1(g) prepayment, repurchase, redemption or defeasance thereof or any such holder or holders shall not constitute an Event rescind or shall have a right to rescind the purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hi) any of the Borrowers Borrower, any Guarantor or REIT, (i) any Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Borrower , such Guarantor or such Material Subsidiary or of any substantial part of its assetsthe assets of such Borrower, (ii) such Guarantor or such Material Subsidiary or shall commence any case or other proceeding relating to it such Borrower, such Guarantor or such Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
; or (iii) a if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any Borrower, any Guarantor or any Material Subsidiary and, with respect to this clause (ii) only, (x) such Person under any bankruptcyBorrowers, reorganization, arrangement, insolvency, readjustment of debt, dissolution such Guarantor or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Material Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or (y) such petition, application, case petition or proceeding application shall not have been dismissed within ninety thirty (9030) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such PersonBorrower, any Guarantor or any Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower, any Guarantor or any Material Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent any Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against any Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000;
(lj) [reserved];
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's Liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mi) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) An ERISA Event occurs with respect to any Guaranteed a Pension Plan, an ERISA Reportable Event shall have occurred and such event Plan or Multiemployer Plan which has resulted or could reasonably would be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) the Borrower or any of the Borrowers ERISA Affiliate fails to pay money when due, after the expiration of any applicable grace period, any installment payment with respect to the PBGC or such Guaranteed Pension its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $25,000,000 and one 5,000,000;
(m) any Borrower, any Guarantor or any Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of the following shall apply with respect to any Governmental Authority from conducting any part of its business if such event: (x) such event in the circumstances occurring circumstance could reasonably would be expected to result have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the termination cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any of its Subsidiaries if such Guaranteed Pension Plan event or circumstance is not covered by the PBGC or for the appointment by the appropriate United States District Court of business interruption insurance and would have a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension PlanMaterial Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by any Borrower or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) an Event of Default under any Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against any Borrower or any of its Subsidiaries, a punishment for which in any such case could include the other Loan Documents forfeiture of any assets of such Borrower or such Subsidiary included in the Borrowing Base or the Domestic Borrowing Base or any assets of any Borrower or such Subsidiary not included in the Borrowing Base or the Domestic Borrowing Base but having a fair market value in excess of $5,000,000; or
(q) a Change of Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent shall, at the request of, or may, and upon with the request of consent of, the Required Lenders shallLenders, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations and Swing Line Loans to be, and they shall thereupon forthwith become, immediately due and payable and the require the Borrowers to provide Cash Collateral for all L/C Exposure, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable and the Borrowers shall be required to provide Cash Collateral for all L/C Exposure, in each case, automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9.1 9, and with respect to a failure to comply with §9.1, §9.2 and §9.4 only, such failure shall continue uncured for five (5) Business Days after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2such occurrence;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g12.1(f), involve involves singly or in the aggregate (i) any obligations for borrowed money Indebtedness or credit received under Derivative Contracts (other than Non-Recourse Indebtedness) or other (ii) Non‑Recourse Indebtedness totaling in excess of $25,000,00025,000,000.00 or greater;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty forty-five (6045) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise by the Borrower or any Guarantor other than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 10,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the forfeiture to the United States of America of (i) any assets of the Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any Change of Control shall occur;
(pq) any default, material misrepresentation or breach of warranty by the Borrower as the subordinate lender under any Subordination Agreement; or
(r) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallLenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers or any of their Subsidiaries shall fail to pay any interest on the Loans Loans, any Fees, or other sums due hereunder or under any of the other Loan Documents, within five three (53) days of following the date that upon which the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with the covenant any of its covenants contained in §9.1 ss. ss. 8.1, 8.4, 8.5.1, the first sentence of 8.6, 8.12, 8.14, 8.15, 9 (other than 9.7 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.29.9) or 10;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowss. 13.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and of such failure has been given to the Borrowers by either of the Bank Agents (such grace period to be applicable only in the case event such Default can be remedied by corrective action of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time the Borrowers as is reasonably necessary to effect such cure, but determined by the Syndication Agent in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeits sole discretion);
(fe) any material representation or warranty made by or on behalf of the Borrowers any Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness with an aggregate outstanding principal amount in excess of $25,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation Indebtedness with an aggregate outstanding principal amount in excess of $25,000,000 for borrowed money or credit received or other Indebtedness and such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) any Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Borrower or any of its Subsidiaries or of any substantial part of the assets of such Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it such Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against such Borrower or any of its Subsidiaries and such Person under Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower or any of its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Borrower or any Subsidiary of any Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent any Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against any Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolutionBorrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $25,000,000, terminationor any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $25,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required -104- installment or other payment (within the meaning of ss. 302(f)(1) of ERISA), provided that the Bank Agents determines in their reasonable discretion that such event reasonably would (A) could be expected to result in liability of any Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) any Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days and such restraint or enjoinment or similar restriction by any Governmental Authority would have a Material Adverse Effect;
(m) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(n) an Event of Default shall have occurred under the Kmart Indemnity such that Kmart shall have the right thereunder to exercise the rights granted to it pursuant to Sections 3(c)(ii) or Sections 3(c)(iii) thereof in respect of more than two (2) Premises (as such term is defined therein);
(o) any matured default shall have occurred under the Existing Lease Credit Agreement, the New Lease Loan Agreement or any Financed Lease, whether or not any obligations thereunder have been accelerated;
(p) a Change of Control shall occur;; or
(pq) an Event of Default under BGI and its Subsidiaries at any of time shall not be in compliance with the other Loan Documents shall occurObligor Group Requirement and such failure continues for thirty (30) days; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, either Bank Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iss. ss. 13.1(g) or §12.1(j(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Creditany Lender. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.-105-
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans Loan when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loan, the Closing Fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 6 or 7;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 10.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Lender;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Loan Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) any Insolvency Event shall occur, or shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety fourteen (9014) days following the filing or commencement thereof;
(jh) the Borrower or any of its Subsidiaries organized in Germany shall become obligated to file for bankruptcy proceedings pursuant to Section 64 of the GmbH Act;
(i) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fourteen (6014) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000200,000;
(lk) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Lender's security interests or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersLender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $50,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $50,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), PROVIDED that the Lender determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 50,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than fourteen (14) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have in the opinion of the Lender a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by the Borrower or any of Control shall occur;its Subsidiaries if such loss, suspension, revocation or failure to renew would have in the opinion of the Lender a material adverse effect on the business or financial condition of the Borrower or such Subsidiary; and
(p) an Event the Borrower or any of Default under its Subsidiaries shall fail to observe or perform, in any material respect, any covenant, agreement or obligation contained in any of the other Loan Merger Documents shall occuror the Bridgestone Acquisition Documents; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders shall, Lender may by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Loan Agreement, the Notes, the Letters of Credit Note and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(hSection 10.1(g), §12.1(i) or §12.1(j10.1(h), 10.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers a Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers a Borrower shall fail to pay any interest on the Loans Loans, or any other fees or sums due hereunder or under any of the other Loan Documents, within five (5) days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail failure of MMPI to comply with the covenants contained in §7.12, or a failure of Borrowers to comply with any covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.28;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers a Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticethe Borrowers by the Agent;
(fe) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries the Guarantor in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Loan or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrowers a Borrower or Guarantor shall fail to pay when due (including, including without limitation, limitation at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment or purchase thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,0001,000,000.00;
(hg) any of the Borrowers a Borrower or REIT, Guarantor (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers a Borrower or REIT Guarantor or any substantial part of the assets of any thereofa Borrower or Guarantor, or a case or other proceeding shall be commenced against any such Person a Borrower or Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, a Borrower or Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent a Borrower or any Subsidiary Borrower Guarantor that, either individually with other outstanding uninsured final judgments, undischarged, against any Borrower or Guarantor exceeds in the aggregate, exceed aggregate $25,000,0005,000,000.00;
(lk) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrowers, a Borrower or Guarantor or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) the death or mental incapacity of Guarantor;
(m) any suit or proceeding shall be filed against a Borrower or Guarantor or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, could reasonably be expected to have a Material Adverse Effect and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) a Borrower shall be indicted for a federal crime, a punishment for which could include the forfeiture of the Collateral;
(o) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower or any sale, transfer or other disposition of all or substantially all of the assets of any of the Borrowers shall occur a Borrower other than as permitted under the terms of this Agreement or the other Loan Documents;
(np) with respect to the Guarantor denies that it has any Guaranteed Pension Plan, an ERISA Reportable Event liability or obligation under the Guaranty or any other Loan Document or shall have occurred and such event reasonably would be expected to result in liability of notify the Agent or any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination Banks of such Guaranteed Pension Plan by Guarantor’s intention to attempt to cancel or terminate the PBGC Guaranty or for any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; Guaranty or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Planany other Loan Document beyond any applicable cure period;
(oq) any a Change of Control shall occur;
(pr) an the Market Value of the common stock of MMPI shall at any time be less than $3.00 per share;
(s) MMPI shall fail to comply with any of the agreements contained in the Acknowledgment, or any representation or warranty made by MMPI in the Acknowledgment shall be false or misleading in any material respect;
(t) any Event of Default under Default, as defined in any of the other Loan Documents Documents, shall occur;
(u) MMPI shall fail to do any of the following: (i) no later than three hundred sixty (360) days following the Closing Date, prepare and file with the SEC a Registration Statement covering the resell of the Pledged Stock, (ii) cause the Registration Statement to be effective under the Securities Act of 1933, as amended (“Securities Act”), as soon as practicable, but in no event later than the date that is thirteen (13) months from the date of this Agreement, (iii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective or to permit the Banks to sell the Pledged Stock, until such time as all shares of the Pledged Stock have been sold, or
(v) (iv) file documents required of MMPI for normal blue sky clearance in states where such clearance is required for a sale of the Pledged Stock;
(w) MMPI shall fail at any time to be in compliance with the reporting requirements of the Securities and Exchange Act of 1934, as amended, and to meet the requirement set forth in Rule 144(c) of the Securities Act; or
(x) The common stock of MMPI shall at any time fail to be listed for trading and be traded on NASDAQ, unless otherwise consented to by the Majority Banks. then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders Banks or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Loan Agreement (Meruelo Richard)
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for three (3) days after the Agent has provided the Borrower with written or verbal notice thereof;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days or any other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for three (3) days after the Agent has provided the Borrower with written or verbal notice thereof;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to Sections 7, 8 or 9 or any of the Borrowers by covenants contained in any of the Agent as provided in §3.2Security Documents;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 12.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument constituting or relating to the Collateral or delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money (including, without limitation, any obligation under the Heller Facility, the Textron Facility, or the New Notes), or credit received or other Indebtednessin respect of any Capitalized Leases in excess of $100,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received (including, without limitation, the New Notes and the agreements and instruments executed into by the Borrower in connection with the Heller Facility and the Textron Facility) or other Indebtedness and in respect of a▇▇ ▇▇▇italized Leases in excess of $100,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(gpurchase of any such obligations;
(g) an event of default shall not constitute an Event of Default unless such failure to performoccur under the DZ Bank Facility, together with other failures to perform as described in §12.1(g)the Heller Facility, involve singly the Textron Facility or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000New Notes;
(h) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate $100,000;
(k) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid or repurchased in whole or in the aggregate, exceed $25,000,000part;
(l) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case other than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;,
(m) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $100,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $100,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 100,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(o) there shall occur any Change material damage to, or loss, theft or destruction of, any of Control shall occurthe Collateral or any Eligible Project, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case is not fully covered by insurance and which, in the opinion of the Agent or the Required Banks, materially impairs its security interest or increases its risk;
(p) an Event there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of Default its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(q) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $100,000;
(r) (i) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 20% or more of the outstanding shares of common stock of the Borrower (other than Robert E. Mead); (ii) during any period of twelve consecutiv▇ ▇▇▇▇▇▇▇▇ ▇▇▇ths, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; or (iii) there shall occur any change in the Borrower's key management personnel (whether by termination, death, incompetence or otherwise), which the Required Bank deem material, and, within thirty (30) days of such change, the Borrower does not have in place a team of key management personnel with skills at least commensurate, in the reasonable opinion of the Required Banks, with those of the Borrower's key management team in place as of the date hereof.
(s) there shall occur a material adverse change in the Collateral or in the business, operations, properties or condition (financial or otherwise) of the Borrower, which, in the opinion of the Agent or the Required Banks, impairs its security or increases its risk, including, without limitation, if any financial information furnished to the Agent or Banks shall indicate any operating loss or total liabilities in excess of total assets, as determined in accordance with generally accepted accounting principles (in the absence of any operating loss or total liabilities in excess of total assets, any adverse change which has less than a five percent (5%) one time or annual adverse impact on any of the Borrower's revenues, net profit, net worth or assets shall not be deemed material);
(t) there shall occur an event of default under any material agreement affecting or related to any Eligible Project;
(u) commencement of any levy, seizure, attachment or sale upon execution against any Collateral or other proceedings of any nature whereby the Borrower shall or may be deprived of title or right of possession to the Collateral or any part thereof;
(v) the Borrower or the Servicer shall fail to remit to the Agent any proceeds of any Collateral or shall fail to perform any of the obligations under the Lock Box Agreement or the Servicing Agreement;
(w) the Borrower, Silverleaf Club or any Association shall fail to fund maintenance fees, taxes, reserves, or other payments required for the proper and efficient operation of any Eligible Project, or the Silverleaf Club or any Association shall default in the observance or performance of its duties in connection with an Eligible Project;
(x) there shall occur a conveyance, assignment, sale, pledge, transfer, hypothecation or other disposition (which shall include execution of a contract for sale) of legal or equitable ownership of any part of the Collateral, except as expressly permitted by the Loan Documents Documents;
(y) any material adverse change in the financial condition of the Borrower or in the condition of the Collateral (for purposes of this provision, a decline in the net worth of the Borrower of $100,000 or less shall occurnot be considered a material adverse change); or
(z) DZ Bank does not purchase loans in substantially the amounts and during the periods specified in the Business Plan or if the proceeds of such purchase are insufficient to make the principal payments described in Section 3.2 hereof or if Borrower fails to apply such proceeds to repayment of the Loans as provided in Section 3.2 hereof. then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §Sections 12.1(h), §12.1(i) or §12.1(jor
12.1 (k), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silverleaf Resorts Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any reimbursement obligations with respect to draws on the Letters of Credit when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any other reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §9.27.6(a), (ii) §9.37.20, (iii) §9.48, or (iv) §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(ed) any of the Borrowers Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day 30)-day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of LenderAgent’s original notice; provided that with respect to any defaults under §7.4, §7.5, §7.7, or §7.9, the thirty (30) day cure period described above shall be reduced to a period of ten (10) days and no additional cure period shall be provided with respect to such defaults;
(fe) any material representation or warranty made by or on behalf of the Borrowers Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(f) Any (a) Credit Party defaults under any Recourse Indebtedness in an aggregate amount equal to or greater than $25,000,000 with respect to all uncured defaults at any time, or (b) Credit Party or Subsidiary thereof defaults under any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $100,000,000 with respect to all uncured defaults at any time, in each case, after any required notice and the expiration of any applicable cure period;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest Borrower or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(h) any of the Borrowers or REITCredit Party, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower or REIT other Credit Party or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower or REIT other Credit Party or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower Credit Party that, either individually or in the aggregate, exceed in excess of $25,000,0005,000,000.00 in the case of the REIT Guarantor or the Borrower or $500,000.00 in the case of any Subsidiary Guarantor;
(lk) any of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Majority Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the BorrowersCredit Parties, or any court or any other governmental or regulatory authority Governmental Authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) the failure of any Credit Party or its Subsidiaries to remediate within the time period permitted by applicable law or lawful governmental order (or within a reasonable time given the nature of the problem if no specific time period has been given) material environmental matter with respect to Hazardous Substances related to (i) any dissolution, termination, partial Pool Properties or complete liquidation, merger (ii) any other Real Estate whose aggregate book values are in excess of Ten Million Dollars ($10,000,000) after all administrative hearings and appeals have been concluded or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documentswaived;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of the Borrowers Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(on) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Credit, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations, . In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers Borrower will be released to BorrowersBorrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers either Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers either Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees Fees, or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentor under any other document between any Lender and either Borrower or any of its Subsidiaries, when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers either Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Sections 10, 11 or 12;
(d) any of the Borrowers either Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 15.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent the earlier of (i) written notice thereof, of such failure has been given to the Borrowers by the Administrative Agent and in the case (ii) any officer of a default that cannot be cured within either Borrower becoming aware of such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticefailure;
(fe) any material representation or warranty made by or on behalf of the Borrowers either Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) either Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation obligations for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases in each case, having an outstanding principal balance in excess of $175,000 in the aggregate, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in each case, having an outstanding principal balance in excess of $175,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) either Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of either Borrower or any of its Subsidiaries or of any substantial part of the assets of either Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it either Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against either Borrower or any of its Subsidiaries and such Person under Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating either Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of either Borrower or any such Person Subsidiary of either Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured not consecutive, or unbonded upon which an execution shall be made, any final judgments judgment against Parent either Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrowers or any of their Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000175,000;
(lj) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be paid, prepaid, redeemed or repurchased in whole or in part or an offer to pay, prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made other than as permitted by Section 11.8 hereof;
(k) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in any of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of either Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) either Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $175,000, terminationor either Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $50,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could reasonably would be expected to result in liability of the Borrowers or any of the Borrowers to pay money their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 100,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring could reasonably would be expected to result in constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(m) either Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business that has or could reasonably be expected to have a Material Adverse Effect and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of either Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and could reasonably be expected to have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by either Borrower or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect;
(p) an Event either Borrower or any of Default its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against either Borrower or any of its Subsidiaries, a punishment for which in any such case could reasonably be expected to have a Material Adverse Effect;
(q) if either Borrower or any of their Subsidiaries shall be in default under any Material Agreement, or any of such Material Agreements shall have been terminated or not renewed;
(r) if any of the other Loan Documents Senior Management shall cease to be employed by, or otherwise fail to render services (as presently performed), for the Borrowers, and such individual shall not have been replaced by an individual or individuals, having appropriate experience and expertise (as reasonably determined by the Administrative Agent) within ninety (90) days of such member of Senior Management ceasing to perform such duties; or
(s) a Change of Control shall occur; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(hSections 15.1(g), §12.1(i15.1(h), 15.1(j) or §12.1(j15.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the thirty maturity of the Obligations);
(30c) day cure period provided Borrower or any other Loan Party shall fail to comply with any covenant contained in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article §7.4, §7.9, §8 or §9;
(ed) Borrower or any of the Borrowers other Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), ; and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeBorrower by Agent;
(fe) any material Any representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries Loan Party in this Agreement or in any other Loan DocumentDocument to which it is a party, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(gi) Borrower or any of the Borrowers Restricted Subsidiary shall fail to pay at maturity or otherwise when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness having an aggregate principal amount outstanding of at least $100,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(gor (ii) any Unrestricted Subsidiary shall not constitute an Event fail to pay at maturity or otherwise when due, or within any applicable period of Default unless such failure to performgrace, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations any obligation for borrowed money or credit received or other Indebtedness totaling having an aggregate principal amount outstanding of at least $5,000,000, or fail to comply with any financial covenant with respect thereto, or any bankruptcy or insolvency default with respect to such Unrestricted Subsidiary shall occur under any agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of $25,000,000;5,000,000)
(h) any of the Borrowers or REIT, (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of Borrower or any such Subsidiary or of any substantial part of its assetsthe assets of any thereof, including, without limitation, any Eligible Asset, (ii2) shall commence any case or other proceeding relating to it Borrower or any of such Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of the Borrowers or REIT $5,000,000), or any substantial part of the assets of any thereof, including, without limitation, any Eligible Asset, or a case or other proceeding shall be commenced against any Borrower or such Person Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any Borrower or such Person Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a A decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating Borrower or any such Person, Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of $5,000,000) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of Borrower or any such Person Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower or any Subsidiary Borrower of its Subsidiaries, that, either individually or with other outstanding final judgments, undischarged, against Borrower and its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0005,000,000 (to the extent not paid or covered by insurance);
(lk) If any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Party or any of the Borrowerstheir respective stockholders, partners, members or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any Any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Loan Party, or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Loan Party, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) Borrower or any of its Subsidiaries shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower included in the Collateral;
(n) with With respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event that reasonably would could be expected to result in liability of any of the Borrowers to pay money Loan Party to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any A Change of Control shall occur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(p) Any Event of Default, as defined in any of the other Loan Documents, shall occur;
(pq) an Event Any amendment to or termination of Default under a financing statement naming any Loan Party as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of any Loan Party without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other Loan Documents than Agent or Agent's counsel (or by Borrower at Agent's direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof; or
(r) Borrower shall occurcease to maintain its REIT Status; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.;
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers shall fail to pay any interest on the Loans within five (5) days Loans, the commitment fee or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers or their Subsidiaries shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2section 9, 10 or 11;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowsection 14.1 or those which by their terms expressly exclude any grace period for any non-compliance therewith) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to ICT by the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of any of the Borrowers or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrowers or their Subsidiaries shall fail to pay when due (including, without limitation, or at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received in respect of any Capitalized Leases or other Indebtednessany guaranties of Indebtedness of others in an aggregate amount in excess of $250,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other in respect of any Capitalized Leases or any guaranties of Indebtedness and of others in an aggregate amount in excess of $250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any of the Borrowers or REIT, (i) their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Borrower or Subsidiary or of any substantial part of its assets, (ii) the assets of such Borrower or Subsidiary or shall commence any case or other proceeding relating to it any of the Borrowers or their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, administration, readjustment of debt, administrative receivership, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against or any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution the Borrowers or liquidation or similar law of any jurisdiction, now or hereafter in effect, their Subsidiaries and any such Person of the Borrowers or their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers or REIT or adjudicating any such Person, their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person of the Borrowers or their Subsidiaries in an involuntary case under federal bankruptcy laws or the bankruptcy or insolvency laws of any other jurisdiction as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured not consecutive, any final judgment against any of the Borrowers or unbonded final judgments against Parent Borrower or any Subsidiary Borrower their Subsidiaries that, either individually or with other outstanding final judgments, undischarged, against the Borrowers and their Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000250,000;
(lj) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded or the Agent's security interests or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the BorrowersBorrowers or their Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of ICT or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 250,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) any of the Borrowers or their Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order has or could reasonably be expected to have a material adverse effect on the business or financial condition of such Borrower or Subsidiary;
(m) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Borrowers or their Subsidiaries if such loss, suspension, revocation or failure to renew would or could reasonably be expected to have a material adverse effect on the business or financial condition of such Borrower or Subsidiary;
(n) any of the Borrowers or their Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against any of the Borrowers or their Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of such Borrower or Subsidiary having a fair market value in excess of $250,000; or
(o) any Change person or group of Control shall occur;
persons (p) an Event within the meaning of Default under any Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occur; have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 20% or more of the outstanding shares of common stock of ICT. then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the NotesLoans, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(isection 14.1(g) or §12.1(j14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLender.
Appears in 1 contract
Sources: Credit Agreement (Ict Group Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(ai) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(bj) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the thirty maturity of the Obligations);
(30k) day cure period provided Borrower or any other Loan Party shall fail to comply with any covenant contained in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article §7.4, §7.9, §7.11, §7.21, §8 or §9;
(el) Borrower or any of the Borrowers other Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents12), ; and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower thereof shall have such additional time as is reasonably necessary been given to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticeBorrower by Agent;
(fm) any material Any representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries Loan Party in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Loan or a Letter of Credit RequestCredit, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(gn) any of the Borrowers Any Loan Party shall fail to pay at maturity or otherwise when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness (other than Non-Recourse Indebtedness) having an aggregate principal amount outstanding of at least $20,000,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(ho) any of the Borrowers or REIT, Any Loan Party (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Loan Party or of any substantial part of its assetsthe assets of any thereof, including, without limitation, any Mortgaged Property or any Negative Pledge Property, (ii2) shall commence any case or other proceeding relating to it any Loan Party under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
(ip) a A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT Loan Party, or any substantial part of the assets of any thereof, including, without limitation, any Mortgaged Property or any Negative Pledge Property, or a case or other proceeding shall be commenced against any such Person Loan Party under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person Loan Party thereof shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(jq) a A decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Loan Party thereof bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person Loan Party thereof in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kr) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower any Loan Party, or any Subsidiary Borrower thereof, that, either individually with other outstanding final judgments, undischarged, against the Loan Parties and their Subsidiaries (or any of them) exceeds in the aggregate, exceed aggregate $25,000,00010,000,000 (to the extent not paid or covered by insurance);
(ls) If any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Party or any of the Borrowerstheir respective stockholders, partners, members or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mt) any Any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Loan Party, or any Subsidiary thereof, or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur Loan Party, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nu) with Any Loan Party shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person included in the Collateral;
(v) With respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event that reasonably would could be expected to result in liability of any of the Borrowers to pay money any Loan Party to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ow) any A Change of Control shall occur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(x) Any Event of Default, as defined in any of the other Loan Documents, shall occur;
(py) an Event Any amendment to or termination of Default a financing statement naming any Loan Party as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of any Loan Party without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other than Agent or Agent’s counsel (or by a Loan Party at Agent’s direction) without the prior written consent of Agent and Borrower or the affected other Loan Party fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof; or
(z) Temple-Inland shall make any written claim for indemnity against Forestar Group under any the Spin-off Tax Sharing Agreement related to the taxable nature of the other Loan Documents shall occurSpin-off Transaction in excess of $25,000,000; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occur:
(a) any of the Borrowers shall fail to pay any principal of of, or interest on the Loans or any Reimbursement Obligation or any Letter of Credit Fee, commitment fee, or other fee or expense hereunder when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant any of their covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.10, 11 or 12;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(ec) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
15.1) anD such default shall continue for a period of ten (10) days after the other subclauses occurrence thereof;
(d) any representation or warranty of any of the Borrowers in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(ge) any of the Borrowers shall fail to pay default in the payment when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money principal of or credit received or other interest on any postpetition Indebtedness, or shall fail any pre-petition Indebtedness if, by order of the Bankruptcy Court issued with respect to observe such pre-petition Indebtedness, the default thereunder entitles the holder thereof to relief from the automatic stay of ss.362 of the Bankruptcy Code, in excess oF $250,000 in the aggregate of such postpetition or perform pre-petition Indebtedness, or any term, covenant or agreement contained event specified in any agreement by which it is boundnote, agreement, indenture or other document evidencing or securing any obligation for borrowed money such postpetition Indebtedness shall occur if the effect of such event is to cause, or credit received (with the giving of notice or other Indebtedness and the lapse of time or both) to permit the holder or holders thereof of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause such Indebtedness to become due, or to be prepaid in full prior to its stated maturity; or any of the Borrowers shall default in the payment when due of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling amount in excess of $25,000,000250,000 in the aggregate under any postpetition Derivative Transaction, or any event specified in any postpetition Derivative Transaction to which any of the Borrowers is a party shall occur if the effect of such event is to cause, or (with the giving of notice or the lapse of time or both) to permit, termination or liquidation payments in respect of such postpetition Derivative Transaction in excess of $250,000 to become due;
(f) any of the Borrowers shall be enjoined from conducting any part of its business as a debtor in possession, there shall occur any act of terrorism or other "force majeure" event disrupting any material -71- portion of the businesses of the Borrowers, or there shall occur any loss or change in any license or permit of any of the Borrowers, which in each such case referred to this clause (f) would reasonably be expected to have a material adverse effect on the Borrowers, considered as a whole;
(g) IF ANY OF THE LOAN DOCUMENTS OR ANY OF THE DOCUMENTS CREATING OR EVIDENCING ANY OF THE PREPETITION LENDER DEBT SHALL BE CANCELLED, TERMINATED, REVOKED OR RESCINDED; OR THE ADMINISTRATIVE AGENT'S LIEN ON ANY OF THE COLLATERAL OR ANY OF THE LIENS SECURING THE PREPETITION LENDER DEBT SHALL CEASE TO BE PERFECTED OR HAVE THE PRIORITY CONTEMPLATED BY THIS CREDIT AGREEMENT, THE PREPETITION CREDIT AGREEMENT, OR THE ORDERS, AS THE CASE MAY BE, OR ANY ACTION AT LAW, SUIT OR IN EQUITY OR OTHER LEGAL PROCEEDING TO CANCEL, REVOKE, RESCIND OR OTHERWISE CHALLENGE ANY OF THE LOAN DOCUMENTS OR THE PREPETITION LENDER DEBT OR THE LIENS SECURING THE OBLIGATIONS OR THE PREPETITION LENDER DEBT SHALL BE COMMENCED BY ANY OF THE BORROWERS; OR ANY COURT OR ANY OTHER GOVERNMENTAL OR REGULATORY AUTHORITY OR AGENCY OF COMPETENT JURISDICTION SHALL MAKE A DETERMINATION THAT, OR ISSUE A JUDGMENT, ORDER, DECREE OR RULING TO THE EFFECT THAT, ANY ONE OR MORE OF THE LOAN DOCUMENTS OR ANY OF THE DOCUMENTS CREATING OR EVIDENCING ANY OF THE PREPETITION LENDER DEBT IS ILLEGAL, INVALID OR UNENFORCEABLE IN ACCORDANCE WITH THE TERMS THEREOF;
(h) (i) any of the Borrowers or REIT, (i) shall make any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an assignment for the benefit amount in excess of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, $250,000; (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of the assets ERISA by a Multiemployer Plan in an amount in excess of any thereof$250,000; (iii) an ERISA Reportable Event, or a case failure to make a required installment or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment payment (within the meaning of debt, dissolution or liquidation or similar law ss.302(f)(1) of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person ERISA in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments against Parent Borrower or any Subsidiary Borrower that, either individually or in the aggregate, exceed amount iN excess of $25,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers 250,000 shall occur or any sale, transfer or other disposition of and the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and Administrative Agent determines in its reasonable discretion that such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; (iv) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (yv) a trustee shall have been appointed the institution by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(i) there shall occur any material damage to, or loss, theft or destruction of any material item of Collateral which is not insured or which is insured but as to which loss, theft or destruction, the insurance proceeds relating thereto have not been paid to the Administrative Agent, for the benefit of the Banks and the Agents, in accordance with the terms of the Security Documents;
(j) the Bankruptcy Court shall enter any order (i) amending, supplementing, altering, staying, vacating, rescinding or otherwise modifying any Order or any other order with respect to any of the Cases affecting in any material respect this Credit Agreement or the Prepetition Credit Agreement, (ii) appointing a chapter 11 trustee or an examiner with enlarged powers relating to the operation of the business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code in any of the Cases, (iii) dismissing any of the Cases or converting any of the Cases to a chapter 7 case, or (iv) granting relief from the automatic stay to any creditor holding or asserting a Lien or reclamation claim on a material portion (i.e., more than $250,000 in the aggregate) of the assets of any of the Borrowers or where the deprivation of any of the Borrowers of such assets would reasonably be expected to have a material adverse effect on the Borrowers, considered as a whole;
(k) the Bankruptcy Court shall fail to enter the Final Order by January 31, 2002;
(l) an application shall be filed by any of the Borrowers for the approval of any other Superpriority Claim (exclusive of the Superpriority Claim in favor of the Prepetition Lenders) in any of the Cases which is PARI PASSU with or senior to the claims of the Administrative Agent and the Banks against any of the Borrowers unless after giving effect to the transactions contemplated by such application, all Obligations and the Prepetition Lender Debt (whether contingent or otherwise) shall be paid in full in cash and the Commitments shall be terminated), or there shall arise any such Superpriority Claim;
(m) any of the Borrowers shall be unable to pay its postpetition debts as they mature, shall fail to comply with any order of the Bankruptcy Court in any material respect, or shall fail to make, as and when such payments become due or otherwise, any adequate protection payments with respect to the Prepetition Debt which are required or permitted by the Orders or any other order of the Bankruptcy Court;
(n) there shall remain undischarged for more than thirty (30) days any final postpetition judgment or execution action against any of the Borrowers, or relief from the automatic stay of Section 362(a) of the Bankruptcy Code shall be granted to any creditor or creditors of any of the Borrowers with respect to assets having an aggregate value in excess of $250,000 or where the deprivation of any of the Borrowers of such assets would reasonably be expected to have a material adverse effect on the Borrowers, considered as a whole;
(o) any Change of Control shall occurANY OF THE BORROWERS SHALL FILE A MOTION IN ANY OF THE CASES (I) EXCEPT FOR THE PAYMENT OF PAYROLL AND PAYROLL-RELATED EXPENSES AND AS OTHERWISE PROVIDED IN THE ORDERS, TO USE CASH COLLATERAL OF THE BANKS OR OF THE PREPETITION LENDERS UNDER SECTION 363(C) OF THE BANKRUPTCY CODE WITHOUT THE BANKS' AND THE PREPETITION LENDERS' CONSENT, (II) TO RECOVER FROM ANY PORTIONS OF THE COLLATERAL ANY COSTS OR EXPENSES OF PRESERVING OR DISPOSING OF SUCH COLLATERAL UNDER SECTION 506(C) OF THE BANKRUPTCY CODE, TO CUT OFF RIGHTS IN THE COLLATERAL UNDER SECTION 552(B) OF THE BANKRUPTCY CODE, OR (III) TO TAKE ANY OTHER ACTION OR ACTIONS ADVERSE TO THE BANKS OR THE PREPETITION LENDERS OR THEIR RIGHTS AND REMEDIES HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE DOCUMENTS EVIDENCING OR CREATING ANY OF THE PREPETITION LENDER DEBT OR THE BANKS' OR THE PREPETITION LENDERS' INTEREST IN ANY OF THE COLLATERAL;
(p) an Event A SUIT OR ACTION AGAINST ANY OF THE BANKS, THE AGENTS, THE PREPETITION AGENTS, OR THE PREPETITION LENDERS SHALL BE COMMENCED BY ANY OF THE BORROWERS OR THE PREPETITION BORROWERS, ANY FEDERAL, STATE ENVIRONMENTAL PROTECTION OR HEALTH AND SAFETY AGENCY OR ANY OFFICIAL COMMITTEE IN ANY CASE, WHICH SUIT OR ACTION ASSERTS ANY CLAIM OR LEGAL OR EQUITABLE REMEDY CONTEMPLATING SUBORDINATION OF ANY CLAIM OR LIEN OF THE BANKS, THE AGENTS, THE PREPETITION LENDERS, OR THE PREPETITION AGENTS, AND SHALL REMAIN UNDISMISSED OR UNSTAYED FOR THIRTY (30) DAYS AFTER ITS COMMENCEMENT WITHOUT ANY PRELIMINARY RELIEF OF THE NATURE SOUGHT HAVING BEEN GRANTED; AND, WITH RESPECT TO ANY SUIT OR ACTION BY ANY SUCH FEDERAL OR STATE AGENCY OR OFFICIAL COMMITTEE, A PRELIMINARY ORDER FOR RELIEF OR JUDGMENT OR DECREE SHALL HAVE BEEN ENTERED IN SUCH SUIT OR ACTION AGAINST THE BANKS, THE AGENTS, THE PREPETITION AGENTS, OR THE PREPETITION LENDERS AND, IN THE CASE OF A PRELIMINARY ORDER, SUCH PRELIMINARY ORDER HAS NOT BEEN STAYED WITHIN TEN (10) DAYS AFTER ITS ENTRY;
(q) (i) the failure to submit to the Agents, the Banks, the Prepetition Agents and the Prepetition Lenders by February 28, 2002, the Borrowers' business plan addressing the restructuring of Default under the Borrowers' business operations; (ii) the failure to submit to the Agents, the Banks, the Prepetition Agents and the Prepetition Lenders by March 31, 2002, the Borrowers' capital restructuring plan; (iii) the failure to file by June 30, 2002, a Reorganization Plan and a disclosure statement consistent with the business and capital restructuring plans; and (iv) unless waived by the Required Lenders and the Agents in connection with the extension of the Termination Date as contemplated by the definition of that term, the failure of such Reorganization Plan to become effective within 12 months following the Closing Date;
(r) the subordination terms of the Subordinated Debt or any other prepetition subordination agreements in favor of any of the other Loan Documents Prepetition Lenders or the Banks shall occurnot be enforceable by any of the Prepetition Lenders, the Prepetition Agents, the Banks, or the Agents; or
(s) the occurrence of an event of default or contempt under either of the Orders; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders Banks shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable or required, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries (i) shall fail to pay any interest on the Loans (A) within one (1) day following the date when the same shall become due and payable, other than at the stated date of maturity or any accelerated date of maturity or (B) when the same shall become due and payable at the stated date of maturity or any accelerated date of maturity or (ii) shall fail to pay sums due hereunder or under any of the other Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 Section 8 (other than Sections 8.6(b), 8.13 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.28.17), 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 Section 13.1) for fifteen (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (3015) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall (ii) fail to observe or perform any material term, covenant covenant, or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received received, or other Indebtedness and in respect of any Capitalized Leases, in each case under this subparagraph (f) in excess of $1,000,000.00, including without limitation, under the Senior Loan Documents or under the Trade Vendor Term Sheet or the Trade Vendor Extension Agreement, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall , whether or not constitute an Event of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000acceleration has taken place;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,500,000.00;
(lj) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded or the Collateral Agent’s security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,500,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrower or any Change of Control its Subsidiaries shall occurbe enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(pm) an Event there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of Default under God or public enemy, or other casualty, which in any such case causes, for more than ten (10) consecutive days, the cessation or substantial curtailment of revenue producing activities at retail locations of the Borrower or any of its Subsidiaries constituting twenty-five percent (25%) or more of the other Loan Documents Borrower’s and its Subsidiaries retail locations if such event or circumstance is not covered by business interruption insurance;
(n) there shall occuroccur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary; or
(o) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary having a fair market value in excess of $1,500,000.00; then, and upon in any such Event of Defaultevent so long as the same may be continuing, the Agent Agents may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest notice from the Agents or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersLenders.
Appears in 1 contract
Sources: Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:: (
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
; (b) the Borrowers Borrower shall fail to pay any interest on the Loans Loans, the Facility Fee, the Administrative Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within five (5) days of the date that after the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
; (c) the Borrowers Borrower or the Parent shall fail to comply with the covenant any of their covenants contained in §9.1 7 (other than 7.2, 7.7, 7.10 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
7.11), 8 or 9; (d) any of the Borrowers Borrower or the Parent or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below12) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty Borrower by the Administrative Agent; (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or the Parent or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
; (gf) any of the Borrowers Borrower, the Parent or any of their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account obligation (including any guaranties thereof) in respect of any obligation for borrowed money or credit received (including letters of credit issued for the account of the Borrower, the Parent or other Indebtednessany of its Subsidiaries) or in respect of any Capitalized Leases in excess of $10,000,000 in the aggregate, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases in excess of $10,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any of the Borrowers Borrower, the Parent or REIT, (i) any of their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any of the Borrower, the Parent or any of their Subsidiaries or of any substantial part of its assetsthe assets of any of the Borrower, (ii) the Parent or any of their Subsidiaries or shall commence any case or other proceeding relating to it any of the Borrower, the Parent or any of their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of the Borrower, the Parent or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, their Subsidiaries and any such Person of the Borrower, the Parent or any of their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
; (jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating any of the Borrowers Borrower, the Parent or REIT or adjudicating any such Person, of their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person of the Borrower, the Parent or any of their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
; (ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against any of the Borrower, the Parent Borrower or any Subsidiary Borrower of their Subsidiaries that, either individually or with other outstanding final judgments, undischarged, against the Borrower, the Parent and any of their Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,000;5,000,000; (j)
(li) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or (ii) any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of (A) the BorrowersBorrower, the Parent or any of their Subsidiaries party thereto, or (B) any of the ▇▇▇▇▇ family stockholders, or (C) any other stockholder if such action, suit or proceeding has not been dismissed or withdrawn within sixty (60) days of the commencement thereof, or (iii) any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
; (mk) the Borrower or any dissolutionERISA Affiliate incurs any liability pursuant to Title IV of ERISA (other than for premiums) to the PBGC or a Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000, terminationor the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
; (ol) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents Borrower, the Parent or any of their Subsidiaries shall occurbe enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days; or (m) the Parent shall cease to own, directly or indirectly, 100% of the capital stock of the Borrower; or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and members of the ▇▇▇▇▇ family (or any trusts or similar entities established for the benefit of members of the ▇▇▇▇▇ family) shall at any time cease to own, legally or beneficially, at least fifty-one percent (51%) (by number of votes) of the Voting Stock of the Parent; or, during any period of twelve consecutive calendar months, individuals who were directors or who were elected by the members of the board of directors of the Parent on the first day of such period shall cease to constitute a majority of the board of directors of the Parent. then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower and the Parent; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i12.1(g) or §12.1(j12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Administrative Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” "EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”"DEFAULTS") shall occuroccur and be continuing:
(a) the Borrowers Borrower shall fail to pay any principal of the Revolving Credit Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower or any Guarantor shall fail to pay any interest on the Loans Revolving Credit Loans, the Facility Fee, the Agent Fees or other sums due hereunder or under any of the other Loan Documents, within five (5) days Business Days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower (i) shall fail to comply with the any of its covenants contained in Sections 5.4, 5.5, 5.10, 6 or 7 hereof, or (ii) shall fail to comply with its covenant contained in §9.1 Section 5.6 hereof and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2for thirty (30) days;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 10.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases or any obligations with respect to interest rate protection arrangements or exchange rate protection arrangements which, in the aggregate, represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $10,000,000 or more, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other in respect of any Capitalized Leases or evidencing any interest rate protection arrangement or exchange rate protection arrangement which in the aggregate represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $10,000,000 or more, and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and shall not have been dismissed within sixty (60) days, or the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,00010,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nj) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 10,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ok) the holders of all or any Change part of Control the Subordinated Debt shall occuraccelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part, in each case in violation of the provisions of this Credit Agreement;
(pl) an Event of Default under if any of the other Loan Documents shall occurbe canceled, terminated, revoked or rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(m) a "Change in Control" shall have occurred (which for the purposes of this subsection (m) shall mean the occurrence of any of the following events):
(i) the acquisition by any Person (including any syndicate or group deemed to be a "person" under Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of Capital Stock of the Borrower entitling such Person to exercise 50% or more of the total voting power of all shares of Capital Stock of the Borrower entitled to vote generally in the elections of directors (any shares of voting stock of which such person or group is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage);
(ii) any consolidation of the Borrower with, or merger of the Borrower into, any other Person, any merger of another Person into the Borrower, or any sale or transfer of all or substantially all of the assets of the Borrower to another Person (other than a transfer of assets to one or more Guarantors or a merger (A) which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Capital Stock of the Borrower or (B) which is effected solely to change the jurisdiction of incorporation of the Borrower); or
(iii) during any consecutive two-year period, individuals who at the beginning of such period constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the stockholders of the Borrower was approved by a vote of 66-2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower then in office; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 10.1(g) or §12.1(j)10.1(h) hereof, all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for fifteen (15) calendar days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other (i) Recourse Indebtedness totaling in excess of $25,000,00010,000,000, or (ii) Non-Recourse Indebtedness in excess of $50,000,000;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty fifteen (6015) days during any calendar year, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent (x) the Borrower or any Subsidiary Borrower Guarantor that, either individually or in the aggregate, exceed $25,000,00010,000,000.00 in any calendar year or (y) any Subsidiary of the Borrower that is not a Subsidiary Guarantor that, either individually or in the aggregate, exceed $10,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Majority Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) any of the Unencumbered Pool Properties;
(p) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) [reserved];
(r) [reserved];
(s) [reserved];
(t) [reserved];
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not an Unencumbered Pool Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Control shall occur;; or
(py) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallMajority Lenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute , Borrower hereby expressly waiving any right to notice of intent to accelerate and sole discretion after the occurrence and during the continuance notice of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowersacceleration.
Appears in 1 contract
Sources: Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If any Any of the following events (“Events shall constitute an Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans Loans, the Facility Fee, any fees due under the Fee Letter, other fees or other sums due hereunder or under any of the other Loan Documents, within five (5) days Business Days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower (i) shall fail to comply with the covenant any of its covenants contained in §9.1 §6.4, 6.5, 6.6 (with respect to the Borrower’s existence), 7 or 8 hereof, or (ii) shall fail to comply with its covenants contained in §§6.6 (other than with respect to the Borrower’s existence), 6.10 or 6.13 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2for thirty (30) days;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 below11.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Administrative Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received (other than trade credit in the ordinary course of business) or other Indebtednessin respect of any Capitalized Leases or any obligations with respect to Swap Contracts which, in the aggregate, represents Indebtedness (calculated, with respect to Swap Contracts, based on the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof) of $75,000,000 or more, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received (other than trade credit in the ordinary course of business) or other in respect of any Capitalized Leases or Swap Contracts which, in the aggregate, represents Indebtedness (calculated, with respect to Swap Contracts, based on the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof) of $75,000,000 or more, and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hi) the Borrower or any of the Borrowers or REIT, its Material Subsidiaries (i1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or (2) shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Material Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Material Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii3) shall take any action to authorize or in furtherance of any of the foregoing;
, or (iii) a if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Material Subsidiaries and shall not have been dismissed within sixty (60) days, or the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Material Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate $75,000,000;
(i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in accelerated liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $75,000,000, (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, and the extension of the time to pay in connection with the resolution of any dispute in accordance with the terms of Title IV of ERISA, any installment payment with respect to its withdrawal liability under §4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $75,000,000, (iii) the Borrower or any of its Subsidiaries fails to comply with Applicable Pension Laws with respect to any Foreign Plan and such failure has resulted or could reasonably be expected to result in accelerated liability in an aggregate amount in excess of $75,000,000, or (iv) a Foreign Plan is terminated and such termination has resulted or could reasonably be expected to (x) result in accelerated liability in an aggregate amount in excess of $75,000,000 and (y) have a material adverse effect on the business, assets or financial condition of the Borrower and its Subsidiaries, taken as a whole;
(k) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part, or an offer to prepay, redeem or repurchase the aggregateSubordinated Debt in whole or in part shall have been made, exceed $25,000,000in each case in violation of the provisions of this Credit Agreement;
(l) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;; or
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation a “Change in Control” shall have occurred (which for the purposes of this subsection (m) shall mean the occurrence of any of the Borrowers shall occur following events):
(i) the acquisition by any Person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended) of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of Capital Stock of the Borrower entitling such Person to exercise 50% or more of the total voting power of all shares of Capital Stock of the Borrower entitled to vote generally in the elections of directors (any shares of voting 47438543.7 stock of which such person or group is the beneficial owner that are not then outstanding being deemed outstanding for purposes of calculating such percentage);
(ii) any consolidation of the Borrower with, or merger of the Borrower into, any other Person, any merger of another Person into the Borrower, or any sale, sale or transfer of all or other disposition substantially all of the assets of the Borrower to another Person (other than a merger (A) which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Capital Stock of the Borrowers shall occur other than as permitted under Borrower or (B) which is effected solely to change the terms jurisdiction of this Agreement incorporation of the Borrower); or
(iii) during any consecutive two-year period, individuals who at the beginning of such period constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the other Loan Documents;stockholders of the Borrower was approved by a vote of 66-2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower then in office; or
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any of (i) the Borrowers Borrower or any of its Subsidiaries shall fail to pay money to make any payment under any Permitted Securitization Transaction that is a Material Securitization Transaction, when the PBGC same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), and any such Guaranteed Pension Plan failure shall continue after the applicable grace period, if any, specified in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect documents relating to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; transaction, or (yii) a trustee any Event of Termination under any Material Securitization Transaction shall have been appointed by occur and continue after the United States District Court applicable grace period, if any, specified in such documents if either, pursuant to administer such Plan; or documents, (zA) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change existence of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, Termination would automatically cause the Agent may, and upon the request acceleration of the Required Lenders shall, by notice in writing all indebtedness due to the Borrowers declare all amounts owing with respect to this Agreement, purchaser or lender under such documents or (B) the Notes, the Letters existence of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any such Event of Default specified in §12.1(h), §12.1(i) Termination would permit the purchaser or §12.1(j), all lender under such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge documents to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to accelerate the payment of all other Obligations indebtedness due to the purchaser or if there are no outstanding Obligations lender under such documents or require the repurchase of the receivables sold thereunder and Lenders have no further obligation (1) such Event of Termination continues unremedied or unwaived for a period of more than ninety (90) days after the date that the Administrative Agent gives notice to make Revolving Credit Loans the Borrower of such Event of Termination or issue Letters (2) the purchaser or lender under such documents accelerates the payment of Credit such indebtedness or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowersrequires the repurchase of the receivables sold thereunder.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:: -57-
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) intentionally omitted;
(d) the Borrowers Borrower shall fail to comply with the any covenant contained in §9.1 Section 9.2, Section 9.3, Section 9.4, Section 9.5, Section 9.6, Section 9.7, Section 9.9 or Section 9.10 and such failure shall continue uncured for thirty (30) days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9Agent;
(e) any of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §Section 12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower, the Guarantors, or any of their respective Subsidiaries (i) shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or (ii) shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §this Section 12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §this Section 12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,0005,000,000.00;
(h) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower any of the Borrower, the Guarantors, or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,0005,000,000;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the BorrowersBorrower or the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers Borrower or any Guarantor shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers Borrower or any Guarantor shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any suit or proceeding shall be filed against or with respect to the Borrower, any Guarantor, any of their respective Subsidiaries or any Collateral which in the good faith business judgment of the Required Lenders after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding shall not have been dismissed within sixty (60) days following the filing thereof;
(p) the Borrower, any Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect;
(q) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor's intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document beyond any applicable cure period;
(r) any Change of Control shall occur;
(ps) an Event of Default under any of the other Loan Documents shall occur; or
(t) an "Event of Default" (as defined in the Master Credit Agreement) shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §Section 12.1(h), §Section 12.1(i) or §Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured for five (5) Business Days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, 9.4 or §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) the Borrower, the Guarantors or any of the Borrowers their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers Borrower, the Guarantors or any of their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contracts), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contracts) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or to require the settlement, termination, prepayment, purchase or redemption thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve (i) in respect of Recourse Indebtedness, singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,00050,000,000.00 or (ii) in respect of Non-Recourse Indebtedness, singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $75,000,000.00;
(h) the Borrower, any Guarantor or any of the Borrowers or REITtheir respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, monitor, receiver, receiver-manager, or receiver similar official for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effectInsolvency Law, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator liquidator, receiver, monitor, receiver-manager, or receiver similar official of the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effectInsolvency Law, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator liquidator, receiver, monitor, receiver-manager, or receiver similar official for the Borrower, any Guarantor or any of the Borrowers or REIT their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constitutedany Insolvency Law;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,00050,000,000.00;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the BorrowersBorrower or a Guarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 25,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) Borrower, any Change Guarantor or any of Control their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall occurbe indicted for a federal or foreign crime, a punishment for which could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the assets included in the calculation of the Unencumbered Asset Value;
(p) any Guarantor denies that it has any liability or obligations under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or cancel the Contribution Agreement or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document; or
(q) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Required Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable first under the Letters of Credit and then to all other Revolving Credit Loans. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower will deposit in the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable first under the Letters of Credit and then to other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations as provided above or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers Borrower will be released to BorrowersBorrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation or fail to purchase and pay for or Redeliver Consigned Precious Metal when the same shall become due and payable or required, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment or Redelivery;
(b) the Borrower or any of its Subsidiaries (i) shall fail to pay any interest on the Loans or Consignment Fees on Consigned Precious Metal (A) within one (1) day following the date when the same shall become due and payable, other than at the stated date of maturity or any accelerated date of maturity or (B) when the same shall become due and payable at the stated date of maturity or any accelerated date of maturity or (ii) shall fail to pay the commitment fees, any Letter of Credit Fee, the Agents' fee, or other sums due hereunder or under any of the other Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 Section 8 (other than Sections 8.6(b), 8.13 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.28.17), 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this Section 13.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, in each case under this clause (B) in excess of $1,000,000.00, or shall (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases, in each case under this clause (B) in excess of $1,000,000.00, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,500,000.00;
(lj) if any of the Loan Documents shall be canceled, terminated, revoked or rescinded or the Collateral Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,500,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than ten (10) consecutive days, the cessation or substantial curtailment of revenue producing activities at retail locations of the Borrower or any of its Subsidiaries constituting twenty-five percent (25%) or more of the Borrower's and its Subsidiaries retail locations if such event or circumstance is not covered by business interruption insurance;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) the Borrower or any Change of Control its Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,500,000.00; or
(p) an Event any person or group of Default under any persons (within the meaning of Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occurhave acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 30% or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; then, and upon in any such Event event (i) the Borrower shall purchase all Consigned Precious Metal in accordance with the provisions of DefaultSection 4.4 hereof and (ii) so long as the same may be continuing, the Agent Agents may, and upon the request of the Required Lenders Banks shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 13.1(g) or §12.1(j13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest notice from the Agents or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to BorrowersBank.
Appears in 1 contract
Sources: Revolving Credit and Gold Consignment Agreement (Whitehall Jewellers Inc)
Events of Default and Acceleration. If The occurrence of any of the following events (“Events shall constitute an Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of or any Interest Payment Date or if Borrower or any Guarantor shall fail to pay any other sums due under the date that Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower or any Guarantor shall fail to comply with the any covenant contained in §9.1 ▇, §▇ and such failure shall continue uncured after written notice thereof shall have been given the Financial Covenants which, in the case of the Guarantors, are applicable to the Borrowers by the Agent as provided in §3.2Guarantors;
(d) any of the Borrowers Borrower or any of their respective Subsidiaries shall fail to perform any other termGuarantor, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given as applicable to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers Guarantors, shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified above in the other subclauses of this §12 (including, without limitation, §12.2 below12) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary are applicable to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original noticethem;
(fe) any material Any representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective Subsidiaries Guarantor in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Loan Request or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) Borrower or any of the Borrowers Guarantor shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, in each case, in excess of $500,000.00, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is boundbound (including any event or condition that requires such debt to be prepaid or redeemed), evidencing or securing any obligation for such borrowed money or credit received or other Indebtedness and Indebtedness, in each case, in excess of $500,000.00, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) Borrower or any of the Borrowers or REIT, Guarantor (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any such Person or of any substantial part of its assetsthe assets of any thereof, (ii) shall commence any case or other proceeding relating to it any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower or any of the Borrowers or REIT Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(ji) a A decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating Borrower or any such Person, Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Parent Borrower or any Subsidiary Borrower Guarantor that, either individually with other outstanding uninsured final judgments, undischarged, against any such Person or other Borrower or Guarantors exceeds in the aggregate, exceed aggregate $25,000,0002,000,000.00;
(lk) If all or any portion of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of Borrower or Guarantor or any of the Borrowerstheir respective stockholders, partners, members or beneficiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereoftheir respective terms;
(ml) any Any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur Borrower or any sale, transfer Guarantor or other disposition any Transfer of the assets of any of the Borrowers shall occur such Person, other than as Transfers excluded from the definition of Change of Control or otherwise permitted under the terms of this Agreement or the other Loan Documents;
(nm) Any suit or proceeding shall be filed against Borrower or any Guarantor or any of their respective assets which in the good faith business judgment of the Majority Lenders after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would result in an uninsured judgment or settlement that would materially adversely affect the properties, assets, financial condition or business of Borrower or the Guarantors in any Guaranteed Pension Plan, an case or in the aggregate;
(i) An ERISA Reportable Event shall occur with respect to, or proceedings shall commence to have occurred and such event reasonably would a trustee appointed, or a trustee shall be expected appointed, to result administer or to terminate, any Employee Benefit Plan, which ERISA Reportable Event or institution of proceedings is, in liability of any the opinion of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected Agent, likely to result in the termination of such Guaranteed Pension Employee Benefit Plan by for purposes of Title IV of ERISA, and, in the PBGC or case of an ERISA Reportable Event, the continuance of such ERISA Reportable Event unremedied for the appointment by the appropriate United States District Court 30 days after notice of a trustee such ERISA Reportable Event pursuant to administer such Guaranteed Pension Plan; Section 4043(a), (c) or (yd) a trustee of ERISA is given or, in the case of institution of proceedings, the continuance of such proceedings for 45 days after commencement thereof, (ii) any Employee Benefit Plan shall have been appointed by the United States District Court to administer such Plan; terminate for purposes of Title IV of ERISA, or (ziii) any other event or condition shall occur or exist with respect to an Employee Benefit Plan and in each case in clauses (i) through (iii) above, such event or condition, together with all other such events or conditions, if any, could subject Borrower or any Guarantor to any tax, penalty or other liabilities in the PBGC shall have instituted proceedings aggregate material in relation to terminate such Guaranteed Pension Planthe business, operations, property or financial or other condition of Borrower or any Guarantor;
(o) Any Guarantor denies that such Guarantor has any liability or obligation under the Guaranty or the Environmental Indemnity Agreement, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or the Environmental Indemnity Agreement, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or the Environmental Indemnity Agreement after the expiration of any applicable cure periods provided therein, if any;
(p) The occurrence of a Change of Control Control;
(q) An Event of Default occurs under the Senior Term Loan;
(r) Any “Event of Default” as defined in any of the other Loan Documents, shall occur;
(ps) an The Agent shall promptly notify the Lenders of the occurrence of any Event of Default under of which the Agent becomes aware. Upon the occurrence of any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(f), §12.1(g), §12.1(h), §12.1(ior 12
(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (California Coastal Communities Inc)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether by mandatory prepayment, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay (i) any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit or any fees due hereunder or under any of the other Loan Documents when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
payment or (bii) the Borrowers shall fail to pay any interest on the Loans within five (5) days other sums due hereunder or under any of the date that other Loan Document to the Agent or the Lenders (and not addressed by any other provision of this §12.1) when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant contained in §9.1 or §9.3 and such failure shall continue uncured for fifteen (15) Business Days after written notice thereof shall have been given to the Borrowers Borrower by the Agent as provided in §3.2Agent;
(d) any of the Borrowers or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in §9; provided that in the event of a breach of the covenant set forth in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof Borrower shall have been given a period of ninety (90) days following the occurrence of such event in which to the Borrowers by Agent as provided in the preamble to Article 9cure such Default;
(e) any of the Borrowers Borrower or the Guarantors shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereofthereof or require the purchase, prepayment, termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly (i) any Recourse Indebtedness, or in the aggregate obligations for borrowed money or credit received or other (ii) Non‑Recourse Indebtedness totaling in excess of $25,000,00015,000,000.00 individually or in the aggregate;
(h) any of the Borrowers Borrower, the Guarantors or REIT, their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors or REIT their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Parent Borrower any of the Borrower, the Guarantors or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,0001,000,000.00 in any calendar year;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the BorrowersBorrower or the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers Borrower, the Guarantors or any of the Subsidiaries of Borrower shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers Borrower, the Subsidiary Guarantors or any of the Subsidiaries of Borrower shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any of the Borrowers to pay money Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any of the Borrower, the Guarantors or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of such Person which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Collateral;
(p) any Change of Control shall occur;
(pq) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate any Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document
(r) Borrower or any Subsidiary Guarantor abandons all or a portion (other than de minimis portion) of the Collateral Pool Property;
(s) any Collateral Pool Property shall be taken on execution or other process of law (other than by eminent domain) in any action against the owner thereof;
(t) the Collateral Pool Property, or any part thereof, is subjected to actual or threatened waste or to removal, demolition or material alteration so that the value of the Collateral Pool Property is materially diminished thereby, and the Agent determines that the Lenders are not adequately protected from any loss, damage or risk associated therewith;
(u) an Event of Default under any of the other Loan Documents shall occur; or
(v) the Borrower or the Subsidiary Guarantors shall fail to comply with the covenants set forth in §8.6 hereof. then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon Upon demand by Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers Borrower will be released to BorrowersBorrower.
Appears in 1 contract
Sources: Credit Agreement (Sealy Industrial Partners IV, LP)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower or any of its Subsidiaries shall fail to pay (i) when and as required to be paid herein, any amount of principal of the Loans when any Loan or any Reimbursement Obligation, or (ii) within five (5) days after the same shall become becomes due, any interest on any Loan or on any Reimbursement Obligation, any fee due and payable, whether at the stated date of maturity hereunder or any accelerated date of maturity other amount payable hereunder or at under any other date fixed for paymentLoan Document;
(b) the Borrowers shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrowers shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any of Sections 8.4, 8.5, 8.6, 8.8, 8.10, 8.11, 9 or 10;
(c) the Borrower or any of its Subsidiaries shall fail to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days;
(d) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any of its Subsidiaries herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made;
(e) the Borrower or any Subsidiary of the Borrower shall (A) fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Hedge Agreements) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $10,000,000, or (B) fail to observe or perform 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 occurs, the effect of which it is bound, evidencing or securing any obligation for borrowed money or credit received default or other Indebtedness and event is to cause, or to permit the holder or holders thereof of such Indebtedness (or a trustee or agent on behalf of any obligations issued thereunder have accelerated such holder or holders) to cause, with the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event giving of Default unless notice if required, such failure Indebtedness to performbe demanded or to become due or to be repurchased, together with other failures to perform as described in §12.1(gprepaid, defeased or redeemed (automatically or otherwise), involve singly or in the aggregate obligations for borrowed money an offer to repurchase, prepay, defease or credit received or other redeem such Indebtedness totaling in excess of $25,000,000to be made, prior to its stated maturity;
(hf) the Borrower or any of the Borrowers or REIT, its Subsidiaries (iother than any Subsidiary which is a Non-Significant Subsidiary) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(jg) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating its Subsidiaries (other than any such Person, Subsidiary which is a Non-Significant Subsidiary) bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kh) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one or more uninsured or unbonded final judgments is entered against Parent the Borrower or any Subsidiary Borrower that(i) a final judgment or order for the payment of money in an aggregate amount exceeding $10,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), either or (ii) any one or more non-monetary final judgments that would have individually or in the aggregate, exceed $25,000,000a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order that are not promptly stayed, or (B) there is a period of twenty (20) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(li) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made;
(j) any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full of all the Loan Documents Obligations, shall cease to be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof full force and effect; or the express prior written agreement, consent Borrower or approval any of its Subsidiaries shall contest in any manner the Required Lendersvalidity or enforceability of any Loan Document; or the Borrower or any of its Subsidiaries shall deny that it has any or further liability or obligation under any Loan Document, or any action at law, suit in equity or other legal proceeding shall purport to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofDocument;
(mi) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event occurs with respect to a Guaranteed Pension Plan or Multiemployer Plan which has resulted or could reasonably would be expected to result in liability of the Borrower under Title IV of ERISA to the Guaranteed Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) the Borrower or any of the Borrowers ERISA Affiliate shall fail to pay money when due, after the expiration of any applicable grace period, any installment payment with respect to the PBGC or such Guaranteed Pension its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan5,000,000;
(ol) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of the business of the Borrower and its Subsidiaries, taken as a whole, and such order shall continue in effect for more than thirty (30) days; or
(m) a Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) any of the Borrowers shall fail to pay any interest on the Loans within five (5) days Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrowers shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2ss.ss.6, 8.1, 8.2, 8.4, 8.5.1., 8.5.3, 8.5.4, 8.7, 8.9, 8.12, 8.14, 9 or 10;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this ss.
13.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses Company by the Agent;
(e) any representation or warranty of any Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account obligation in excess of any obligation $1,000,000 for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of any Borrower or any of its Subsidiaries or of any substantial part of the assets of any Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it any Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, its Subsidiaries and any such Person Borrower or any of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating any such Person, Borrower or any of its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any Borrower or any Subsidiary of such Person Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent any Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against such Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ol) any Change Borrower or any of Control its Subsidiaries shall occurbe enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(pm) an Event of Default under there shall occur any material damage to, or loss, theft or destruction of, any of the property of any Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other Loan Documents shall occur; thencasualty, and upon which in any such Event of Defaultcase causes, for more than fifteen (15) consecutive days, the Agent may, and upon the request cessation or substantial curtailment of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice revenue producing activities at any facility of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) Borrower or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or Subsidiaries if such excess no longer existsevent or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of such Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Borrower or any of its Subsidiaries if such proceeds deposited by Borrowers will be released loss, suspension, revocation or failure to Borrowers.renew would have a material adverse effect on -68- the business or financial condition of such Borrower or such Subsidiary;
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ---------------------------------- (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days Loans, the facility fee or utilization fee, or other sums due hereunder or under any of the date that other Loan Documents, when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2(S)(S)6, 7 or 8;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in this (S)11) for fifteen (15) days after written notice of such failure has been given to the other subclauses Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its Subsidiaries in this §12 (including, without limitation, §12.2 below) Credit Agreement or in any of the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received (including, without limitation, under or other Indebtednessin respect of the Second Amended and Restated Revolving Credit Agreement) or in respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is boundbound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of capital stock of the Borrower or other Margin Stock for so long as such stock constitutes Margin Stock), evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,0001,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of (S)302(f)(1) of ERISA), provided the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of any of the Borrowers to pay money Borrower to the PBGC or such Guaranteed Pension the Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any assets of the Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries on a consolidated basis;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries on a consolidated basis;
(o) the Borrower or any Change of Control its Subsidiaries shall occur;be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower and its Subsidiaries having an aggregate fair market value in excess of $5,000,000; or
(p) an Event (i) any person or group of Default under any persons (within the meaning of Section 13 or 14 of the other Loan Documents Securities Exchange Act of 1934, as amended) shall occur; then, have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and upon any such Event Exchange Commission under said Act) of Default, the Agent may, and upon the request twenty percent (20%) or more of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters outstanding shares of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any common stock of the Lenders Borrower; or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and (ii) during the continuance any period of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.twelve
Appears in 1 contract
Sources: Revolving Credit Agreement (New England Business Service Inc)
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest on the Loans Loans, the commitment fee, any Letter of Credit Fees, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within five three (53) days Business Days of the date that when the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2;
(d) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 12.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrowers by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers in this Credit Agreement or any of their respective Subsidiaries in this Agreement or any the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrowers or the Designated Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin excess of $10,000,000 in the aggregate, including, without limitation, in respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in excess of $10,000,000 in the aggregate, including, without limitation, in respect of any Capitalized Leases, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(hg) any either of the Borrowers or REIT, (i) shall any Subsidiary of Zale ▇▇▇ll make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of such Borrower or such Subsidiary of Zale, ▇▇ of any substantial part of its assetsthe assets of such Borrower or such Subsidiary of Zale, (ii) ▇▇ shall commence any case or other proceeding relating to it under such Borrower or such Subsidiary of Zale ▇▇▇er any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment Borrower or such Subsidiary of debt, dissolution Zale ▇▇▇ such Borrower or liquidation or similar law such Subsidiary of any jurisdiction, now or hereafter in effect, and any such Person shall Zale ▇▇▇ll indicate its written approval thereof, written consent thereto or formal acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereoftherein;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any or adjudicating either of the Borrowers or REIT or adjudicating any such Person, bankrupt Subsidiary of Zale ▇▇▇krupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of either of the Borrowers or any such Person in an Subsidiary of Zale ▇▇ any involuntary case 87 -81- under federal bankruptcy laws as now or hereafter constitutedconstituted or, if earlier, sixty (60) days shall pass from the date of filing of such involuntary case without the dismissal thereof;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent Borrower either of the Borrowers or any Subsidiary Borrower of Zale that, with other outstanding final judgments, undischarged, against either individually of the Borrowers or any Subsidiary of Zale ▇▇▇eeds in the aggregate, exceed aggregate $25,000,0002,500,000;
(lj) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise other than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lendersrequisite Lenders in accordance with Section 25, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of either of the Borrowers party thereto or any of the Borrowerstheir respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any material provision of one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(nk) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event would reasonably would be expected to result in liability of either Borrower or any of the Borrowers to pay money Designated Subsidiary to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) either of the Borrowers or any Designated Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any significant part of its domestic business in the continental United States and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of either of the Borrowers or any Designated Subsidiary if such event or circumstance 88 -82- is not covered by business interruption insurance and would have a materially adverse effect on the business or financial condition of the Borrowers and the Designated Subsidiaries taken as a whole;
(n) Zale ▇▇▇ll, at any time, legally or beneficially own less than one hundred percent (100%) of the issued and outstanding shares of the capital stock of Zale ▇▇▇aware (unless Zale ▇▇▇ Zale ▇▇▇aware are merged or consolidated as permitted by Section 8.5.1 hereof);
(o) any Change of Control there shall occur;, an event which would allow any Receivables Facility to cease to purchase receivables or begin to amortize the underlying Indebtedness used to finance the purchase of receivables, in either case, prior to the date scheduled (or a date elected by the Borrowers, or either of them) under such Receivables Facility Documents; or
(p) Any of the Borrowers or the Designated Subsidiaries shall make Distributions during any fiscal year in excess of the limitations set forth in Section 8.4(c), whether or not such Distributions were permitted by the terms of such clause at the time when made; provided, however, that any Distribution with respect to any fiscal year shall not be an Event of Default under any because of losses occurring after the end of the other Loan Documents shall occurfiscal year in which such Distribution was made; then, and upon in any such Event of Defaultevent, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrowers Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(iSections 12.1(g) or §12.1(j12.1(h), all such amounts shall become immediately due and payable automatically and automatically, without any requirement of notice from the Agent or any Lender, and without presentment, demand, protest or other notice of any kind from any kind, all of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there which are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowershereby expressly waived.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"Events of Default” " or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “"Defaults”") shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of Loans, the date that the same shall become due and payableCommitment Fee, any reimbursement obligations with respect to the Letters Letter of Credit or any fees Fee, the Agent's fee, or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.2Section 9, 10 or 11;
(d) any of the Borrowers Borrower or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 (including, without limitation, §12.2 belowSection 14.1) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in of such failure has been given to the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Borrower by the Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower or any of the Borrowers its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and in respect of any Capitalized Leases for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof; provided that thereof or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(g) shall not constitute an Event purchase of Default unless any such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000obligations;
(hg) the Borrower or any of the Borrowers or REIT, (i) its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any of its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within ninety forty-five (9045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for or adjudicating the Borrower or any of the Borrowers or REIT or adjudicating any such Person, its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days one thirty days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Parent the Borrower or any Subsidiary Borrower of its Subsidiaries that, either individually with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds in the aggregate, exceed aggregate $25,000,00010,000,000;
(lj) if any of the Loan Documents shall be canceledcancelled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the Borrowersits Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000 or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the meaning of Section 302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event reasonably would (A) could be expected to result in liability of the Borrower or any of the Borrowers to pay money its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any assets of the Borrower or any of its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a 84 76 material adverse effect on the business or financial condition of the Borrower or such Subsidiary;
(o) the Borrower or any Change of Control its Subsidiaries shall occurbe indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $5,000,000;
(p) an Event the holders of Default under all or any part of the other Loan Documents Subordinated Debt shall occur; then, and upon accelerate the maturity of all or any such Event of Default, the Agent may, and upon the request part of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers will be released to Borrowers.Subordinated Debt;
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Sources: Revolving Credit and Term Loan Agreement (Western Digital Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) the Borrowers Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrowers Borrower shall fail to pay any interest on the Loans within five (5) days of the date that the same shall become due and payableLoans, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agentwhen the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers Borrower shall fail to comply with the perform any term, covenant or agreement contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §3.29;
(d) any of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in the other subclauses subsections or clauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(fe) any material representation or warranty made by or on behalf of the Borrowers Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Borrower, any Guarantor or any of the Borrowers their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness and (including under any Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided provided, however, that the events described in this §12.1(g12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g12.1(f), involve involves singly or in the aggregate obligations for borrowed money totaling $5,000,000.00 of Indebtedness or credit received or other Indebtedness totaling in excess of $25,000,000more;
(hg) any of the Borrowers Borrower, the Guarantors, or REITany of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within ninety sixty (9060) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrowers Borrower, the Guarantors, or REIT any of their respective Subsidiaries or adjudicating any such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayedunstayed (including as a result of an appeal), for more than sixty thirty (6030) days days, whether or not consecutive, one (1) or more uninsured or unbonded final judgments against Parent Borrower the Borrower, any Guarantor or any Subsidiary Borrower of their respective Subsidiaries that, either individually or in the aggregate, exceed $25,000,0005,000,000.00 per occurrence or during any twelve (12) month period;
(lk) any of the Loan Documents or the Contribution Agreement shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or contest the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the BorrowersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any Guarantor or any of the Borrowers their respective Subsidiaries shall occur occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(nm) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower, the Guarantors or any of the Borrowers to pay money their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding excess of $25,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or (ii) the Unencumbered Borrowing Base Properties;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any Change of Control shall occur;; or
(pq) an Event of Default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and and, upon the request of the Required Lenders shallLenders, shall by notice in writing to the Borrowers Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowersBorrower; provided that in the event of any Event of Default specified in §12.1(h§12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower fails hereby expressly waiving any right to deliver such cash collateral, upon notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Majority Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrowers the Borrower will be released to Borrowersthe Borrower.
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