01Events of Default. (a) Each of the following shall be an “Event of Default”: (i) default for 30 days in the payment when due of interest (including any duration fees) or Additional Amounts, if any, with respect to the Notes; (ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes; (iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01; (iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document; (v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default: (A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or (B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate; (vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect; (vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days; (viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or (A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts. (b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default. (c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Norwegian Cruise Line Holdings Ltd.), Second Supplemental Indenture (NCL CORP Ltd.)
01Events of Default. (a) Each Any of the following events shall be an “"Event of Default”":
(i1) default for 30 days in If Borrower shall: fail to pay the payment principal of any Notes as and when due; or fail to pay interest accruing on any Notes as and when due and such failure to pay shall continue unremedied for five (5) days after the due date of such amount; or fail to pay any fee or interest or any other amount due under this Agreement or any other Loan Document as and when due and such failure to pay shall continue unremedied for two (including any duration fees2) or Additional Amounts, if any, with respect days after notice by Administrative Agent of such failure to the Notes;pay; or
(ii2) default in the payment when due (at maturity, upon redemption If any representation or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) failure warranty made by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements Borrower in this Indenture (Agreement or in any other than a default in performance, Loan Document or breach, or a covenant or agreement which is specifically dealt contained in any certificate, document, opinion, financial or other statement furnished at any time under or in connection with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) a Loan Document shall prove to have been incorrect in any material respect with any on or as of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such defaultmade; or
(B3) results If Borrower shall fail (a) to perform or observe any term, covenant or agreement contained in Article VII or Article VIII; or (b) to perform or observe any term, covenant or agreement contained in Article VI or otherwise contained in this Agreement (other than obligations specifically referred to elsewhere in this Section) or any Loan Document, or any other document executed by Borrower and delivered to Administrative Agent and/or the Banks in connection with the transactions contemplated hereby and such failure shall remain unremedied for thirty (30) consecutive calendar days after the occurrence thereof (or such shorter cure period as may be expressly prescribed in the acceleration of such Indebtedness prior to its express maturityapplicable Loan Document); provided, andhowever, in each case, the principal amount of that if any such Indebtedness that is due default under clause (b) above cannot by its nature be cured within such thirty (30) day, or shorter, as the case may be, grace period and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there long as Borrower shall have been a commenced cure within such thirty (30) day, or shorter, as the case may be, grace period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million and shall, at any timeall times thereafter, cease diligently prosecute the same to be completion, Borrower shall have an additional period, not to exceed sixty (60) days, to cure such default; in full force and no event, however, is the foregoing intended to effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms an extension of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 daysMaturity Date; or
(A4) If Borrower shall fail (a) to pay any Debt (other than the payment obligations described in paragraph (1) of this Section) in an amount equal to or greater than Ten Million Dollars ($10,000,000) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), or (b) to perform or observe any material term, covenant, or condition under any agreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, after the giving of notice or the lapse of time, or both (other than in cases where, in the judgment of the Required Banks, meaningful discussions likely to result in (i) a court having jurisdiction over the Issuer, a Guarantor waiver or a Significant Subsidiary enters (x) a decree or order for relief in respect cure of the Issuerfailure to perform or observe, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (yii) a decree or order adjudging otherwise averting such acceleration are in progress between Borrower and the Issuerobligee of such Debt), any Guarantor or any the maturity of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiarysuch Debt, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolventsuch Debt shall be declared to be due and payable, or approving as properly filed required to be prepaid (other than by a petition seeking reorganizationregularly scheduled or otherwise required prepayment), arrangementprior to the stated maturity thereof; or
(5) If Borrower, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary Affiliate of Borrower to which One Hundred Fifty Million Dollars ($150,000,000) or group more of Restricted Subsidiaries under any Bankruptcy LawGross Asset Value is attributable, shall: (a) generally not, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its propertybe unable to, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits shall admit in writing that it generally is not paying its inability to, pay its debts as they such debts become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.due; or
Appears in 2 contracts
Samples: Loan Agreement (Taubman Centers Inc), Loan Agreement (Taubman Realty Group LTD Partnership)
01Events of Default. (a) Each An Event of Default shall exist upon the occurrence of any of the following shall be specified events (each an “Event of Default”:):
(a) Any Borrower or any other Credit Party fails to pay (i) when and as required to be paid herein and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or other amount payable hereunder or under any other Credit Document; or
(b) Any representation or warranty made or deemed made herein or in any of the other Credit Documents or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect, false or misleading in any material respect on or as of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Section 7.07(a) or Article VIII hereof; or (ii) any Credit Party shall fail to comply with any other covenant, contained in this Agreement or the 102 other Credit Documents or any other agreement, document or instrument among such Credit Party, the Administrative Agents and the Lenders or executed by such Credit Party in favor of the Administrative Agents or the Lenders (other than as described in Sections 9.01(a) or (c)(i) above), and in the event such breach or failure to comply is capable of cure, is not cured within thirty (30) days of the earlier of (x) a Responsible Officer of any Credit Party having actual knowledge of such breach or failure, and (y) the date on which notice of such breach or failure is delivered by an Administrative Agent or any Lender to the Parent Borrower; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default for 30 days in any payment of principal of or interest on any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the payment when due aggregate for the Credit Parties and any of interest (including any duration fees) or Additional Amountstheir Subsidiaries beyond the period of grace, if any, with respect to provided in the Notes;
instrument or agreement under which such Indebtedness was created; or (ii) default in the payment when observance or performance of any other agreement or condition relating to any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the aggregate for the Credit Parties and their Subsidiaries or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity; or
(at maturityi) Any Credit Party or any of its Subsidiaries shall commence any case, upon redemption proceeding or otherwiseother action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, monitor, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Credit Party or any Subsidiary shall make a general assignment for the principal benefit of its creditors; or (ii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Credit Party or any Subsidiary shall take any action in furtherance of, or premium (including the Redemption Premium)indicating its consent to, if anyapproval of, onor acquiescence in, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with acts set forth in clause (i), (ii) ), or (iii) above), the Notes ; or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgageCredit Party or any Subsidiary shall generally not, indenture or instrument under which there may shall be issued unable to, or by which there may shall admit in writing its inability to, pay its debts as they become due; or
(i) One or more judgments or decrees shall be secured or evidenced entered against any Indebtedness for money borrowed by the Issuer Credit Party or any of its Restricted Subsidiaries involving in the aggregate a liability (to the extent not paid when due or the payment covered by insurance) of which is guaranteed by the Issuer $50,000,000 or more, or (ii) any one or more non-monetary final judgments shall be entered into against any Credit Party or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now existsSubsidiaries that have, or is created after the Signing Datecould reasonably be expected to have, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results individually or in the acceleration of such Indebtedness prior to its express maturityaggregate, a Material Adverse Effect and, in each either case, the principal amount of any and all such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid judgments or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments decrees shall not have been discharged paid and satisfied, vacated, discharged, stayed or waived and there bonded pending appeal within 10 days from the entry thereof; or 103
(g) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Multiemployer Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets of the Parent Borrower or any ERISA Affiliate, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have been a period trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of 60 consecutive days during which proceedings or appointment of a stay Trustee is, in the reasonable opinion of enforcement the Required Lenders, likely to result in the termination of such judgment Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any Credit Party, any of its Subsidiaries or orderany ERISA Affiliate shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency of, any Multiemployer Plan or (vi) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
(h) Either (i) after the Closing Date, any Person or two or more Persons acting in concert acquires “beneficial ownership,” directly or indirectly, of, or acquires by reason of an appeal, waiver contract or otherwise, or shall not have been entered into a contract or arrangement that, upon consummation, will result in effect;its or their acquisition of, control over, Voting Stock of the Parent Borrower (or other securities convertible into such Voting Stock) representing 25% or more of the combined voting power of all Voting Stock of the Parent Borrower, or (ii) during any period of up to 24 consecutive months, commencing after the Closing Date, individuals who at the beginning of such 24 month period were directors of the Parent Borrower (together with any new director whose election by the Parent Xxxxxxxx’s Board of Directors or whose nomination for election by the Parent Borrower’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason, other than retirement, to constitute a majority of the directors of the Parent Xxxxxxxx then in office. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Act of 1934; or
(viii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease Any Credit Document shall fail to be in full force and effect or to give the Administrative Agents and/or the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby (other than except as a result of any action such documents may be terminated or inaction by the Security Agent no longer in force and other than effect in accordance with the terms of the relevant Security Document and this Indenture) for any reason thereof, other than the satisfaction in full of all obligations under this Indenture those indemnities and provisions which by their terms shall survive); or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viiij) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee There shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred occur and be continuing an “event of default” (or any comparable term) under and as a result of such failure.defined in the indentures or other documents evidencing the Senior Notes.
Appears in 1 contract
01Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) Each any Borrower shall fail to pay when due any principal of any Loan;
(b) any Borrower shall fail for five Business Days or more to pay any interest, fee or L/C Reimbursement Obligation or any other amount (other than principal) payable by such Borrower under any Loan Document when and as the following same shall be become due and payable;
(c) any representation or warranty made or deemed made by an “Event Obligor in this Agreement, any other Loan Document or in any certificate furnished pursuant to this Agreement shall prove to have been untrue in any material respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in
Section 6.01 (b) (with respect to the legal existence of Default”:such Borrower), (h)(i), 6.02 (other than those contained in clause (j) of such Section) or 6.03 (subject to application of Section 7.02(b) below);
(e) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Section 7.01) or in any other Loan Document, and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to TCG;
(i) default for 30 days in any Borrower or any Subsidiary (other than any Finance Subsidiary that is not a Borrower) shall fail to make any payment of principal of or interest on any Material Indebtedness when and as the payment when same shall become due and payable (beyond any period of interest (including any duration fees) or Additional Amountsgrace, if any, with respect ) or (ii) any event or condition occurs that results in the acceleration (or permits the holders of such Indebtedness (or a trustee or agent on behalf of such holders) to the Notes;cause such acceleration) of such Material Indebtedness prior to its scheduled maturity; provided that in each case (i) and
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal any amount of the Notes then outstanding voting as a single class Obligations hereunder shall be considered Material Indebtedness (i.e. without regard to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided threshold in such Indebtedness on the date of such defaultdefinition); or
(B) results in the acceleration of such Indebtedness prior to its express maturityprovided further, andthat, in each case, such failure is unremedied and is not validly waived by the principal amount holders of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and documents governing such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) dayssection;
(viiig) except as permitted by this Indenture an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (including with respect to any limitations)i) liquidation, any Note Guarantee is held in any judicial proceeding to be unenforceable winding-up, reorganization or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for other relief in respect of the Issuer, any Guarantor Borrower or any of the Issuer’s Restricted Subsidiaries Material Subsidiary (other than any Finance Subsidiary that is not a Significant Subsidiary Borrower) or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiarydebts, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its propertyProperty, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Borrower) or for a substantial part of its Property, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries foregoing shall be entered;
(h) any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary Borrower) shall (i) commences a voluntary case voluntarily commence any proceeding or file any petition seeking liquidation, winding up, reorganization or other relief under any Bankruptcy Law Federal, state or consents to the entry of an order for relief foreign bankruptcy, insolvency, receivership or similar law now or hereafter in an involuntary case under any Bankruptcy Laweffect, (ii) consents consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or taking possession by similar official for any Borrower or any Material Subsidiary (other than any Finance Subsidiary) or for a Custodian substantial part of its Property, (iv) file an answer admitting the Issuer, material allegations of a petition filed against it in any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiariesproceeding, (iiiv) effects any make a general assignment for the benefit of creditors or (ivvi) admits take any action for the purpose of effecting any of the foregoing;
(i) any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Borrower) shall become unable, admit in writing that it its inability or fail generally is not paying to pay its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.due;
(bj) If one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 shall be rendered against any Borrower or any Subsidiary (to the extent not paid and not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and does not deny coverage) and the same shall remain undischarged for a Default or an Event period of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 60 consecutive days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee during which execution shall not be deemed effectively stayed, or any action shall be legally taken by a judgment creditor to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default attach or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence levy upon any Property of any Default stating what action, if any, they are taking with respect Borrower or any Subsidiary to that Default.enforce any such judgment;
(ck) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no an ERISA Event of Default shall have occurred and that, when taken together with all other ERISA Events that have occurred for which liability has not been fully satisfied, would reasonably be continuing as expected to result in a result of such failure.Material Adverse Effect;
Appears in 1 contract
01Events of Default. If one or more of the following events (“Events of Default”) shall have occurred and be continuing:
(a) Each of the following shall be an “Event of Default”:
(i) default for 30 days in the payment any Account Party shall fail to pay when due any principal of any Loan or any reimbursement obligation in respect of an LC Disbursement or (ii) any Account Party shall fail to pay when due any interest on any Loan or LC Disbursement or any fees or any other amounts payable hereunder and such failure under this clause (including any duration feesii) or Additional Amounts, if any, with respect to the Notesshall continue for four Domestic Business Days;
(iib) default any Account Party shall fail to observe or perform any covenant contained in the payment when due (at maturitySections 5.03(a), upon redemption or otherwise) of the principal of5.07 through 5.13, inclusive, or premium (including its obligation to provide cash collateral pursuant to the Redemption Premiumlast sentence of Section 2.01(d), if any, on, the Notes;
(iiic) failure any Account Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those covered by the Issuer clause (a) or relevant Guarantor to comply with Sections 4.11 or 5.01;
(ivb) failure by the Issuer or relevant Guarantor above) for 60 30 days after written notice thereof has been given to the Issuer Company by the Trustee Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with statement made by any of the agreements Account Party in this Indenture Agreement or in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary (other than a default Newly Acquired Subsidiary) shall fail to make any payment in performance, or breach, or respect of any Debt (other than Loans and other extensions of credit hereunder and any Debt solely of a covenant or agreement which is specifically dealt with Newly Acquired Subsidiary existing at the time such Person becomes a Subsidiary and not created in clause contemplation of such event (i“Newly Acquired Subsidiary Debt”), (ii) or (iii) above), the Notes having a principal amount then outstanding of not less than $150,000,000 when due and such failure shall continue beyond any applicable grace period or the Note Guarantees Company or any Subsidiary (yother than a Newly Acquired Subsidiary) shall fail to make any payment in an amount at least equal to $150,000,000 in respect of any material respect with Derivative Financial Product when due and such failure shall continue beyond any of the agreements in any other Note Documentapplicable grace period;
(vf) default under any mortgage, indenture event or instrument under condition shall occur which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect Debt (other than as a result of any action or inaction by the Security Agent Loans and other extensions of credit hereunder and Newly Acquired Subsidiary Debt) having a principal or face amount then outstanding of not less than in accordance $150,000,000 of the Company or any Subsidiary or enables (or, with the terms giving of notice or lapse 62 of time or both, would enable) the relevant Security Document and this Indenture) for any reason other than the satisfaction in full holder of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor Debt or any Person acting on such holder’s behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; orto accelerate the maturity thereof;
(Ag) any Account Party or Restricted Subsidiary (other than a court having jurisdiction over the Issuer, Newly Acquired Subsidiary) shall commence a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary voluntary case or other proceeding seeking rehabilitation, dissolution, conservation, liquidation, reorganization or other relief with respect to itself or its debts under any Bankruptcy Law bankruptcy, insolvency or (y) other similar law now or hereafter in effect or seeking the appointment of a decree trustee, receiver, liquidator, rehabilitator, dissolver, conservator, custodian or order adjudging the Issuer, any Guarantor other similar official of it or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of shall consent to any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor official in an involuntary case or any such Subsidiary other proceeding commenced against it, or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any shall make a general assignment for the benefit of creditors creditors, or (iv) admits in writing that it shall fail generally is not paying to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against any Account Party or Restricted Subsidiary (other than a Newly Acquired Subsidiary) seeking rehabilitation, dissolution, conservation, liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against any Account Party or such Restricted Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or any governmental body, agency or official shall apply for, or commence a case or other proceeding to seek, an order for the rehabilitation, conservation, dissolution or other liquidation of Account Party or Restricted Subsidiary or of the assets or any substantial part thereof of any Account Party or Restricted Subsidiary or any other similar remedy;
(i) any of the following events or conditions shall occur, which, in the aggregate, reasonably could be expected to involve possible taxes, penalties and other liabilities in an aggregate amount in excess of $150,000,000: (i) any member of the ERISA Group shall fail to pay when due any amount or is found amounts which it shall have become liable to pay under Title IV of ERISA; (ii) notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a court of competent jurisdiction not trustee to be so paying such debts.appointed to administer, any Plan; (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or (v) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans;
(bj) If a Default judgment or order for the payment of money in excess of the greater of (i) $150,000,000 or (ii) 3% of the consolidated shareholders’ equity of the Company and its Consolidated Subsidiaries (after (without duplication) the actual amounts of insurance recoveries, offsets and contributions received and amounts thereof not yet received but which the insurer thereon has acknowledged in writing its obligation to pay) shall be rendered against any Account Party or Restricted Subsidiary and such judgment or order shall continue unsatisfied 63 and unstayed for a period of 90 days after entry of such judgment (and, for purposes of this clause, a judgment shall be stayed if, among other things, an appeal is timely filed and such judgment cannot be enforced);
(k) (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 SEC under said Act) of 20% or more of the outstanding shares of common stock of the Company; or (ii) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (x) nominated by the board of directors of the Company or (y) appointed by directors so nominated; or
(l) any Subsidiary Account Party shall cease for any reason to be a Consolidated Subsidiary, unless (i) such Subsidiary Account Party shall have been consolidated or merged with or into a wholly owned Subsidiary or the Company or (ii) Subsidiary Account Party shall have been terminated as an Account Party hereunder pursuant to Section 10.13; then, and in every such event, and at any time thereafter during the continuance of such event, the Administrative Agent shall, if requested by the Required Banks, by notice to the Company take any or all of the following actions, at the same or different times: (i) terminate the Commitments and they shall thereupon terminate, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Account Parties accrued hereunder shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Account Party and the Guarantor, (iii) notify (or, in the case of any Fronted Letter of Credit, request the applicable Fronting Issuing Bank (and such Fronting Issuing Bank agrees upon such request) to notify) each beneficiary of an outstanding Letters of Credit of the existence of an Event of Default occurs hereunder and is continuing and is actually known to cause a Responsible Officer drawing of the Trusteeaggregate undrawn amount thereunder (if such Letters of Credit so permit) and (iv) demand cash collateral from the Account Parties and the Guarantor in immediately available funds in an amount equal to the then aggregate undrawn amount of all Letters of Credit pursuant to Section 2.03(e); provided that, in the case of any of the Events of Default specified in clause (g) or (h) above (A) with respect to the Company, without any notice to any Account Party or the Guarantor or any other act by the Administrative Agent or the Banks, the Trustee Commitments shall deliver thereupon terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Account Parties accrued hereunder, and the obligations to each Holder provide cash collateral under clause (iv) above, shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby waived by each Account Party and the Default Guarantor and (B) with respect to any Account Party (other than the Company), without any notice to any Account Party or the Guarantor or any other act by the Administrative Agent or the Banks, the Commitments to issue Letters of Credit for the account of, and to make Loans to, such Account Party shall thereupon terminate, the principal of the Loans made to such Account Party then outstanding, together with accrued interest thereon and all fees and other obligations of such Account Party accrued hereunder, and the obligations of such Account Party to provide cash collateral under clause (iv) above, shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Account Parties and the Guarantor; provided, further, that, in the case of an Event of Default within under Section 6.01(b) resulting from a default by any Subsidiary Account Party under Section 5.08, 5.10 or 5.11 or under Section 6.01(c) or (d) (in the earlier latter case, resulting from a default by any Subsidiary Account Party under Section 4.15), the termination of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission the Commitments, the acceleration of an Officer’s Certificate specifying such eventall fees and other obligations of the Account Parties accrued hereunder and the causing of drawings under Letters of Credit shall apply only to the Commitments, notice or other actionfees, its status and what action the Issuer is taking or proposes to take with obligations in respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice Subsidiary Account Party and to the Letters of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking Credit with respect to that Defaultwhich it is the Account Party.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.
Appears in 1 contract
01Events of Default. (a) Each An Event of Default shall exist upon the occurrence of any of the following shall be specified events (each an “Event of Default”:):
(a) Any Borrower or any other Credit Party fails to pay (i) when and as required to be paid herein and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or other amount payable hereunder or under any other Credit Document; or
(b) Any representation or warranty made or deemed made herein or in any of the other Credit Documents or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect, false or misleading in any material respect on or as of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Section 7.07(a) or Article VIII hereof; or (ii) any Credit Party shall fail to comply with any other covenant, contained in this Agreement or the other Credit Documents or any other agreement, document or instrument among such Credit Party, the Administrative Agents and the Lenders or executed by such Credit Party in favor of the Administrative Agents or the Lenders (other than as described in Sections 9.01(a) or (c)(i) above), and in the event such breach or failure to comply is capable of cure, is not cured within thirty (30) days of the earlier of (x) a Responsible Officer of any Credit Party having actual knowledge of such breach or failure, and (y) the date on which notice of such breach or failure is delivered by an Administrative Agent or any Lender to the Parent Borrower; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default for 30 days in any payment of principal of or interest on any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the payment when due aggregate for the Credit Parties and any of interest (including any duration fees) or Additional Amountstheir Subsidiaries beyond the period of grace, if any, with respect to provided in the Notes;
instrument or agreement under which such Indebtedness was created; or (ii) default in the payment when observance or performance of any other agreement or condition relating to any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the aggregate for the Credit Parties and their Subsidiaries or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity; or
(at maturitye) (i) Any Credit Party or any of its Subsidiaries shall commence any case, upon redemption proceeding or otherwiseother action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, monitor, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Credit Party or any Subsidiary shall make a general assignment for the principal benefit of its creditors; or (ii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Credit Party or any Subsidiary shall take any action in furtherance of, or premium (including the Redemption Premium)indicating its consent to, if anyapproval of, onor acquiescence in, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with acts set forth in clause (i), (ii) ), or (iii) above), the Notes ; or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgageCredit Party or any Subsidiary shall generally not, indenture or instrument under which there may shall be issued unable to, or by which there may shall admit in writing its inability to, pay its debts as they become due; or
(f) (i) One or more judgments or decrees shall be secured or evidenced entered against any Indebtedness for money borrowed by the Issuer Credit Party or any of its Restricted Subsidiaries involving in the aggregate a liability (to the extent not paid when due or the payment covered by insurance) of which is guaranteed by the Issuer $50,000,000 or more, or (ii) any one or more non-monetary final judgments shall be entered into against any Credit Party or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now existsSubsidiaries that have, or is created after the Signing Datecould reasonably be expected to have, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results individually or in the acceleration of such Indebtedness prior to its express maturityaggregate, a Material Adverse Effect and, in each either case, the principal amount of any and all such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid judgments or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments decrees shall not have been discharged paid and satisfied, vacated, discharged, stayed or waived and there bonded pending appeal within 10 days from the entry thereof; or
(i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Multiemployer Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets of the Parent Borrower or any ERISA Affiliate, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have been a period trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of 60 consecutive days during which proceedings or appointment of a stay Trustee is, in the reasonable opinion of enforcement the Required Lenders, likely to result in the termination of such judgment Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any Credit Party, any of its Subsidiaries or orderany ERISA Affiliate shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency of, any Multiemployer Plan or (vi) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
(h) Either (i) after the Closing Date, any Person or two or more Persons acting in concert acquires “beneficial ownership,” directly or indirectly, of, or acquires by reason of an appeal, waiver contract or otherwise, or shall not have been entered into a contract or arrangement that, upon consummation, will result in effect;its or their acquisition of, control over, Voting Stock of the Parent Borrower (or other securities convertible into such Voting Stock) representing 25% or more of the combined voting power of all Voting Stock of the Parent Borrower, or (ii) during any period of up to 24 consecutive months, commencing after the Closing Date, individuals who at the beginning of such 24 month period were directors of the Parent Borrower (together with any new director whose election by the Parent Borrower’s Board of Directors or whose nomination for election by the Parent Borrower’s shareholders was approved by a vote of at 97 least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason, other than retirement, to constitute a majority of the directors of the Parent Borrower then in office. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Act of 1934; or
(viii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease Any Credit Document shall fail to be in full force and effect or to give the Administrative Agents and/or the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby (other than except as a result of any action such documents may be terminated or inaction by the Security Agent no longer in force and other than effect in accordance with the terms of the relevant Security Document and this Indenture) for any reason thereof, other than the satisfaction in full of all obligations under this Indenture those indemnities and provisions which by their terms shall survive); or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viiij) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee There shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred occur and be continuing an “event of default” (or any comparable term) under and as a result of such failure.defined in the indentures or other documents evidencing the Senior Notes.
Appears in 1 contract
01Events of Default. (a) Each of the The following shall each will be an “event of default under this agreement (an "Event of Default”:"):
(i1) default for 30 any payment required under the Loan Documents is not made within five days in after the payment date when due of interest (including any duration fees) or Additional Amounts, if any, with respect to the Notesdue;
(ii2) default the Financial Information or any representation in the payment when due (at maturityLoan Documents is materially incorrect or misleading, upon redemption and Borrower does not within 15 days after notice from Lender to Borrower, cause a change in any fact or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notescircumstance as required to make such representation materially correct;
(iii3) failure by the Issuer or relevant Guarantor to Borrower does not comply with Sections 4.11 the requirements of Section , , or 5.01(Loan to Value);
(iv4) failure Borrower does not: (A) pay (or cause payment of) all taxes assessed on the Collateral prior to the date when delinquent, except for any such amounts that are being contested in good faith by appropriate proceedings and for which Adequate Reserves have been set aside for the Issuer payment thereof; (B) maintain (or relevant Guarantor cause to be maintained) all policies of insurance required under the Loan Documents and pay (or cause payment of) all premiums for that insurance on or prior to the date when due; and (C) maintain the Collateral (or cause the Collateral to be maintained) in good condition and repair, ordinary wear and tear excepted, all in accordance with the terms and conditions of the Loan Documents;
(5) the filing of any federal tax lien against Borrower, any member or general partner, as applicable, of Borrower, or against the Collateral and same is not discharged of record within 30 days after the date filed;
(6) any Change in Control; or if FP OP pledges or grants a security interest in its membership or any other interest in any Borrower to any Person;
(7) an Insolvency Proceeding is initiated by Borrower; or any Insolvency Proceeding initiated against Borrower by another Person is not dismissed within 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Documentfiling;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer 8) Borrower or any of its Restricted Subsidiaries (Subsidiary are or become subject to a Judgment or Judgments for the payment of money in an aggregate amount (as to all such Judgments or orders) exceeding $1,000,000.00, which is guaranteed are not covered by independent third-party insurance as to which the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
insurer does not dispute coverage and (A) is caused enforcement proceedings are commenced by a failure to pay principal of any creditor upon any such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
Judgment, or (B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that there is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 sixty consecutive days during which a stay of enforcement of any such judgment or orderJudgment, by reason of an appeal, waiver a pending appeal or otherwise, shall is not have been in effect;
(vii9) any security interest under "Event of Default" as that term is defined in the Security Loan Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten agreement;
(10) daysany failure to pay when due (after giving effect to any applicable cure or grace period) a total of more than $5,000,000 in the aggregate owed by Borrower, FP OP or FP Inc to Lender or any other institutional lender in connection with real estate or corporate debt;
(viii11) except as permitted for more than ten days after notice from Lender, Borrower is in default under any term, covenant or condition of this agreement not previously described in this Section , which can be cured by this Indenture the payment of a sum of money; and Farmland Partners Inc. RE Term Loan 2020 Loan Agreement
(including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues 12) for 30 daysdays after notice from Lender, Borrower is in default under any term, covenant or condition of this agreement not previously described in this Section ; or
provided that if : (A) a court having jurisdiction over it is reasonably certain that the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries default cannot be cured by Borrower within that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, 30 day period; and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) Borrower has commenced curing that default within that 30 day period and thereafter diligently and expeditiously proceeds to cure that default, then that 30 day period will be extended for so long as reasonably required by Borrower in the Issuerexercise of due diligence to cure that default, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known up to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier maximum of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission the notice to Borrower of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.
Appears in 1 contract
01Events of Default. (a) Each The occurrence of any one or more of the following in this Section 14.01 shall constitute an Event of Default under this Loan Agreement. Automatic Events of Default. Any of the following shall be constitute an “automatic Event of Default”:
(i) default for 30 days in the payment : any failure by Borrower to pay or deposit when due of interest (including any duration fees) amount required by the Note, this Loan Agreement or Additional Amounts, if any, with respect any other Loan Document; any failure to maintain the Notes;
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) insurance coverage required by any Loan Document; any failure by the Issuer or relevant Guarantor Borrower to comply with Sections 4.11 the provisions of Section 1.07(d) relating to its single asset status; if any warranty, representation, certification, or 5.01;
(iv) failure by the Issuer statement of Borrower or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee in this Loan Agreement or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performanceLoan Documents is false, inaccurate, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) misleading in any material respect with any when made; fraud, gross negligence, willful misconduct, or material misrepresentation or material omission by or on behalf of the agreements in any other Note Document;
(v) default under any mortgageBorrower, indenture Master Lessee, Guarantor, or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer Key Principal or any of its Restricted Subsidiaries (their officers, directors, trustees, partners, members, or managers in connection with: the application for, or creation of, the Indebtedness or the payment Master Lease; any financial statement, rent roll, or other report or information provided to Lender during the term of which is guaranteed the Mortgage Loan; or any request for Lender’s consent to any proposed action, including a request for disbursement of Reserve/Escrow Account Funds or Collateral Account Funds; the occurrence of any Transfer not permitted by the Issuer Loan Documents; the occurrence of a Bankruptcy Event; the commencement of a forfeiture action or any proceeding, whether civil or criminal, which, in Lender’s reasonable judgment, could result in a forfeiture of its the Mortgaged Property or otherwise materially impair the lien created by this Loan Agreement or the Security Instrument or Lender’s interest in the Mortgaged Property; if Borrower, Master Lessee, Guarantor, or Key Principal is a trust, or if Control of Borrower, Master Lessee, Guarantor, or Key Principal is Transferred or if a Restricted Subsidiaries)Ownership Interest in Borrower, other than Indebtedness owed Master Lessee, Guarantor, or Key Principal would be Transferred due to the Issuer termination or revocation of a trust, the termination or revocation of such trust, except as set forth in Section 1.13(d) or Section 1.13(h); any of its Restricted Subsidiariesfailure by Borrower to complete any Repair related to fire, whether such Indebtedness or Guarantee now existslife, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest safety issues in accordance with the terms of this Indenture Loan Agreement within the Completion Period (or such Security Document other date set forth on the Required Repair Schedule or otherwise required by Lender in writing for such Repair); any exercise by the holder of any other debt instrument secured by a mortgage, deed of trust, or deed to secure debt on the Mortgaged Property or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision therein of a court right to declare all amounts due under that debt instrument immediately due and payable; a termination, amendment, or modification of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as Master Lease Document not permitted by this Indenture (including with respect to the Loan Documents; if any limitations)warranty, any Note Guarantee is held representation, certification, or statement of Borrower in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force the Master Lease, the Property Level Assignment of Leases and effectRents, or any Guarantor other Master Lease Document is false, inaccurate or misleading in any Person acting on behalf material respect when made; a default by Borrower or Master Lessee which continues beyond any applicable cure period under the Subordination Agreement (DST Master Lease), the Master Lease, the Property Level Assignment of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee Leases and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant SubsidiaryRents, or any group other Master Lease Document; failure by Borrower to enforce all remedies under the Master Lease Documents against Master Lessee; the removal of its Restricted Subsidiaries thatSignatory Trustee as the manager under the DST Trust Agreement; or failure of Key Principal or Guarantor to Control Borrower, taken togetherSignatory Trustee, would and Master Lessee. Events of Default Subject to a Specified Cure Period. Any of the following shall constitute an Event of Default subject to the cure period set forth in the Loan Documents: if Key Principal or Guarantor is a Significant Subsidiarynatural person, as bankrupt or insolventthe death of such individual, unless all requirements of Section 1.13(e) are met; the occurrence of a Guarantor Bankruptcy Event, unless requirements of Section 1.13(f) are met; any failure by Borrower, Key Principal, or approving Guarantor to comply with the provisions of Section 5.02(b) and Section 5.02(c); or any failure by Borrower to perform any obligation under this Loan Agreement or any Loan Document that is subject to a specified written notice and cure period, which failure continues beyond such specified written notice and cure period as properly filed a petition seeking reorganization, arrangement, adjustment or composition of set forth herein or in respect the applicable Loan Document. Events of Default Subject to Extended Cure Period. The following shall constitute an Event of Default if the Issuer, any existence of such Guarantor condition or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Lawevent, or appointing a Custodian of the Issuer, any such Guarantor failure to perform or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and default in effect performance continues for a period of 60 consecutive thirty (30) days after written notice by Lender to Borrower of the existence of such condition or event, or of such failure to perform or default in performance, provided, however, such period may be extended for up to an additional thirty (B30) days if Borrower, in the Issuerdiscretion of Lender, any Guarantor is diligently pursuing a cure of such; provided, further, however, no such written notice, grace period, or extension shall apply if, in Lender’s discretion, immediate exercise by Lender of a right or remedy under this Loan Agreement or any Loan Document is required to avoid harm to Lender or impairment of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary Mortgage Loan (including the Loan Documents), the Mortgaged Property or any group other security given for the Mortgage Loan: any failure by Borrower to perform any of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case obligations under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor this Loan Agreement or any such Subsidiary Loan Document (other than those specified in Section 14.01(a) or group of Restricted Subsidiaries Section 14.01(b) above) as and when required; or for all if Lender incurs any costs or substantially all the property and assets of the Issuer, expenses or suffers any such Guarantor loss or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing damage as a result of such failureany claims, actions, suits or proceedings arising from any tenant opportunity to purchase act applicable to and affecting the Mortgaged Property.
Appears in 1 contract
01Events of Default. (a) Each of the following shall be an “Event of Default”:
(ia) default if Borrowers fail to make any payment of principal or interest when due under the Note (excluding the payment due on the Maturity Date) or fail to make any Deposits if and when required under this Loan Agreement, and such failure continues uncured for 30 five (5) days in after the applicable due date, without any requirement for notice thereof from Lender;
(b) if Borrowers fail to make any payment of principal or interest when due under the Note on the Maturity Date or fail to make any other payment when due of interest (including any duration fees) on the Maturity Date under the Note, this Loan Agreement or Additional Amounts, if any, with respect to the Notesother Loan Documents;
(iic) default in the if Borrowers fail to make any other payment when due under the Note, this Loan Agreement or the other Loan Documents (at maturity, upon redemption except as specified in Section 4.01(a) or otherwise) of the principal of, or premium (including the Redemption PremiumSection 4.01(b)), if any, on, the Notes;
and such failure continues for five (iii5) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to thereof from Lender;
(d) if any representation or warranty made in connection with the Issuer by the Trustee Loan or the Holders of at least 30% Obligations or made in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of Loan Commitment or in the agreements in this Indenture (other than a default in performance, Loan Documents shall be false or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) misleading in any material respect at the time when made;
(e) [Intentionally Omitted];
(f) if a Prohibited Transfer occurs which is not otherwise permitted under Article III;
(g) if an “Event of Default” described in any other provision of this Loan Agreement occurs;
(h) if any Borrower fails to comply with the provisions of Section 3.03;
(i) if an Insolvency Event occurs;
(j) if any Bankruptcy Proceeding is instituted by or against any Borrower, any of the agreements Principals or any Person in Control of any other Note Documentof the Borrowers or any of the Principals, and, if instituted against such Person, is allowed, consented to, or not dismissed within the earlier to occur of (i) ninety (90) days after such institution; or (ii) the filing of an order for relief;
(vk) default under [Intentionally Omitted];
(l) if Borrowers shall fail at any mortgagetime to obtain, indenture maintain, renew, or instrument under which there may be issued or keep in force the insurance policies required by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer Section 2.06 hereof or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregateLoan Documents;
(vim) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;[Intentionally Omitted]
(viin) if any security interest under claim of priority (except based upon a Permitted Encumbrance) to the Security Loan Documents on any Collateral having a Fair Market Value in excess of $25.0 million shallby title, at any timelien, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder otherwise shall be declared invalid or unenforceable in a final non-appealable decision of a upheld by any court of competent jurisdiction or shall be consented to by any Borrower;
(o) the Issuer occurrence of any RICO Violation;
(p) the occurrence of any ERISA Violation;
(q) the occurrence of any OFAC Violation;
(r) if any report, statement or any Guarantor shall assert in writing that any such security interest item required under Section 2.15 is invalid or unenforceable and any such Default continues for not received by Lender after the expiration of (i) thirty (30) days after written notice from Lender (the “First Notice”) plus (ii) ten (10) daysdays after delivery of a second written notice from Lender (the “Second Notice”), which Second Notice shall not be delivered before the date that is thirty (30) days after delivery of the First Notice;
(viiis) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what actionevent or circumstance identified as an “Event of Default” under any Loan Document other than this Loan Agreement; and
(t) except for the occurrence of the events listed in the other clauses of this Section 4.01, if anyBorrowers fail to perform or comply with any other provision contained in this Loan Agreement or in any of the other Loan Documents and such failure is not cured within thirty (30) days after written notice thereof by Lender (the “Grace Period”); provided, they are taking with respect however, that the Grace Period may be extended for up to an additional sixty (60) days (for a total of ninety (90) days from the date of Default) if (i) Borrowers commence and diligently pursue the cure of such Default and deliver (within the Grace Period) to Lender a written request for more time; and (ii) Lender determines in good faith that Default.
(cA) If any report or conference call required by Section 4.19 is provided before such Default cannot be cured within the 90th day Grace Period but can be cured within ninety (90) days after the deadlines indicated for such report Default; (B) no lien or conference call, security interest created by the provision Loan Documents will be impaired prior to completion of such report cure; and (C) Lender’s immediate exercise of any remedies provided hereunder or conference call shall cure a Default caused by Law is not necessary for the failure to provide such report protection or conference call prior to preservation of one or more of the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failureProperties or Lender’s security interest.
Appears in 1 contract
01Events of Default. (a) Each If any of the following shall be events (each, an “Event of Default”) shall occur:
(ia) default the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for 30 days in the payment when due of interest (including any duration fees) prepayment thereof or Additional Amounts, if any, with respect to the Notesotherwise;
(iib) default the Borrower shall fail to pay any interest on any Loan, or any fee or any other amount (other than an amount referred to in the payment when due clause (at maturity, upon redemption or otherwisea) of this Section) payable under this Loan Agreement or under any other Loan Document, when and as the principal ofsame shall become due and payable, or premium (including the Redemption Premium), if any, on, the Notesand such failure shall continue unremedied for a period of 30 calendar days;
(iiic) failure any representation or warranty made or deemed made by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount on behalf of the Notes then outstanding voting as a single class to comply (x) Borrower in or in connection with this Loan Agreement or any of the agreements in this Indenture (other than a default in performanceLoan Document or any amendment or modification hereof or thereof, or breachany waiver hereunder or thereunder, or a covenant in any certificate or agreement which is specifically dealt other document furnished pursuant to or in connection with in clause (i)this Loan Agreement or any other Loan Document or any amendment or modification hereof or thereof, (ii) or (iii) above)any waiver hereunder or thereunder, the Notes or the Note Guarantees or (y) shall prove to have been incorrect in any material respect with (or, in the case of any of the agreements in such representation or warranty under this Loan Agreement or any other Note DocumentLoan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made;
(vd) default under the Borrower shall fail to observe or perform any mortgagecovenant, indenture condition or instrument under which there may be issued agreement contained in this Loan Agreement or by which there may be secured any other Loan Document (other than those specified in clause (a) or evidenced any Indebtedness (b) of this Section) and such failure shall continue unremedied for money borrowed a period of 45 or more calendar days after notice thereof by the Issuer or any of its Restricted Subsidiaries (Administrative Agent or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed Required Lenders to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregateBorrower;
(vie) failure by the Issuer Borrower commences a voluntary case or other proceeding seeking liquidation, judicial or extrajudicial reorganization or other relief with respect to itself or its Indebtedness under any Restricted Subsidiary that is a Significant Subsidiary bankruptcy, insolvency or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court other similar law now or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been hereafter in effect, or consents to any such relief in an involuntary case or other proceeding commenced against it, or makes a general assignment or conveyance for the benefit of creditors;
(viif) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction enters an order or decree against the Issuer Borrower for (i) liquidation, reorganization or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including other relief with respect to it or its Indebtedness under any limitations)bankruptcy, any Note Guarantee is held insolvency or other similar law now or hereafter in any judicial proceeding to be unenforceable effect; provided that such order or invalid or ceases decree shall remain undismissed and unstayed for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf a period of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 60 calendar days; or
(Ag) a court having jurisdiction over any event occurs that under the Issuer, a Guarantor laws of Brazil or a Significant Subsidiary enters (x) a decree or order for relief in respect of any political subdivision thereof has substantially the Issuer, any Guarantor or same effect as any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or events referred to in any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law clauses (e) or (yf) a decree or order adjudging the Issuerof this Section, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairsthen, and in every such event (other than an event with respect to the Borrower described in clause (e), (f) or (g) of this Section), and at any time thereafter during the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other actionnotice of any kind, its status and what action all of which are hereby waived by the Issuer is taking or proposes to take Borrower, provided that, in case of any event with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default the Borrower described in clause (e), (f) or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s(g) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify Section, the Trustee within 30 days principal of the occurrence Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any Default stating what actionkind, if any, they all of which are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused hereby waived by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failureBorrower.
Appears in 1 contract
Samples: Loan Agreement
01Events of Default. (a) Each If any of the following shall be events (any such event, an “Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan when and as the same shall become due and payable and in the currency required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan, or any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any of the Restricted Subsidiaries in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made, and such incorrect representation or warranty (if curable, including by a restatement of any relevant financial statements) shall remain incorrect for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
(d) the Borrower or any of the Restricted Subsidiaries shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.02(a), 5.04 (with respect to the existence of the Borrower) or in Article VI (other than Section 6.10); provided that
(i) default for 30 days any Event of Default under Section 6.10(a)(i) is subject to cure as provided in Section 7.02 and an Event of Default with respect to such Section shall not occur until the payment when due expiration of interest (including any duration fees) or Additional Amounts, if any, the 10th Business Day subsequent to the date on which the financial statements with respect to the Notes;applicable fiscal quarter (or the fiscal year ended on the last day of such fiscal quarter) are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable and
(ii) a default under Section 6.10 shall not constitute an Event of Default with respect to the Term Loans unless and until the Required Revolving Lenders shall have terminated their Revolving Commitments or declared all amounts under the Revolving Loans to be due and payable, respectively (such period commencing with a default under Section 6.10 and ending on the date on which the Required Lenders with respect to the Revolving Credit Facility terminate or accelerate the Revolving Loans, the “Standstill Period”);
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
(f) the Borrower or any of the Restricted Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (at after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, upon redemption provided that this paragraph (g) shall not apply to
(i) secured Indebtedness that becomes due as a result of the sale, transfer or otherwiseother disposition (including as a result of a casualty or condemnation event) of the principal of, property or premium assets securing such Indebtedness (including the Redemption Premium), if any, on, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee extent such sale, transfer or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in other disposition is not prohibited under this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (iAgreement), ,
(ii) termination events or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default similar events occurring under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section will apply to any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of make any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than payment required as a result of any action such termination or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenturesimilar event) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(Aiii) a any breach or default that is (I) remedied by the Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the acceleration of Loans and Commitments pursuant to this Article VII;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, court having jurisdiction over the Issuerprotection, a Guarantor reorganization or a Significant Subsidiary enters (x) a decree or order for other relief in respect of the Issuer, any Guarantor Borrower or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiarydebts, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial material part of its propertyassets, under any Federal, state or ordering the winding up foreign bankruptcy, insolvency, receivership or liquidation of its affairs, and the continuance of any such decree similar law now or order for relief or any such other decree or order unstayed and hereafter in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.or
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
01Events of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Each The Borrower shall fail to pay any principal of any Advance when the following same becomes due and payable; or shall be an “Event fail to pay any interest on any Advance, fees or any other amounts hereunder within two days after the same become due and payable by it; or
(b) Any representation or warranty made by the Borrower herein (whether made on behalf of Default”:itself or otherwise) or by the Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) default the covenant contained in Section 6.03; or (ii) any term, covenant or agreement contained in Section 6.02(c) or (d) for a period of five days after written notice thereof shall have been given to the Borrower by the Agent or any Lender; or (iii) any other term, covenant or agreement contained in this Agreement on its part to be performed or observed if the failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt which is outstanding in a principal amount of at least $10,000,000 in the payment aggregate (but excluding Debt hereunder) of the Borrower or such Subsidiary (as the case may be), when the same becomes due of interest and payable (including any duration fees) whether by scheduled maturity, required prepayment, acceleration, demand or Additional Amountsotherwise), and such failure shall continue after the applicable grace period, if any, with respect to the Notes;
(ii) default specified in the payment when due (at maturity, upon redemption agreement or otherwise) of instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the principal of, or premium (including the Redemption Premium)applicable grace period, if any, onspecified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders maturity of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture such Debt (other than any such Debt owed to a default in performance, Lender or breach, an Affiliate of a Lender if such event or condition shall relate solely to a covenant restriction on the pledge or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any other disposition of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed Margin Stock owned by the Issuer Borrower or any of its Restricted Subsidiaries Subsidiaries); or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the payment of which is guaranteed by the Issuer stated maturity thereof; or
(e) The Borrower or any of its Restricted Subsidiaries)Subsidiaries shall generally not pay its debts as such debts become due, other than Indebtedness owed or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the Issuer benefit of creditors; or any proceeding shall be instituted by or against the Borrower or any of its Restricted Subsidiaries, whether such Indebtedness Subsidiaries seeking to adjudicate it a bankrupt or Guarantee now existsinsolvent, or is created after seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the Signing Dateentry of an order for relief or the appointment of a receiver, if that default:
trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (A) is caused but not instituted by it), either such proceeding shall remain undismissed or unstayed for a failure to pay principal period of such Indebtedness prior to the expiration 60 days, or any of the grace period provided actions sought in such Indebtedness on proceeding (including, without limitation, the date entry of such defaultan order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(Bf) results in Any judgment or order for the acceleration payment of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating money in excess of $125.0 million 10,000,000 shall be rendered against the Borrower or any of its Subsidiaries and either (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there i) enforcement proceedings shall have been a commenced by any creditor upon such judgment or order or (ii) there shall be any period of 60 ten consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver a pending appeal or otherwise, shall not have been be in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(g) a Change of Control shall have occurred; then, and in any such event, the Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to the Borrower, (A) a court having jurisdiction over declare the Issuerobligation of each A Lender to make Advances to be terminated, a Guarantor whereupon the same shall forthwith terminate, and/or (B), declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or further notice of any substantial part kind, all of its propertywhich are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the deemed entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If the Borrower or any report or conference call required by Section 4.19 is provided before of its Subsidiaries under the 90th day after the deadlines indicated for such report or conference callFederal Bankruptcy Code, the provision obligation of each A Lender to make A Advances shall automatically be terminated, the then outstanding Advances, all such report interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or conference call shall cure a Default caused any notice of any kind, all of which are hereby expressly waived by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default Borrower shall have occurred and automatically be continuing as a result of such failureterminated.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
01Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) Each any Borrower shall fail to pay when due any principal of any Loan;
(b) any Borrower shall fail for five Business Days or more to pay any interest, fee or L/C Reimbursement Obligation or any other amount (other than principal) payable by such Borrower under any Loan Document when and as the following same shall be become due and payable;
(c) any representation or warranty made or deemed made by an “Event Obligor in this Agreement, any other Loan Document or in any certificate furnished pursuant to this Agreement shall prove to have been untrue in any material respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 6.01(b) (with respect to the legal existence of Default”:such Borrower), (h)(i), 6.02 (other than those contained in clause (j) of such Section) or 6.03 (subject to application of Section 7.02(b) below);
(e) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Section 7.01) or in any other Loan Document, and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to TCG;
(i) default for 30 days in any Borrower or any Subsidiary (other than any Finance Subsidiary that is not a Borrower) shall fail to make any payment of principal of or interest on any Material Indebtedness when and as the payment when same shall become due and payable (beyond any period of interest (including any duration fees) or Additional Amountsgrace, if any, with respect ) or (ii) any event or condition occurs that results in the acceleration (or permits the holders of such Indebtedness (or a trustee or agent on behalf of such holders) to the Notes;cause such acceleration) of such Material Indebtedness prior to its scheduled maturity; provided that in each case (i) and
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal any amount of the Notes then outstanding voting as a single class Obligations hereunder shall be considered Material Indebtedness (i.e. without regard to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided threshold in such Indebtedness on the date of such defaultdefinition); or
(B) results in the acceleration of such Indebtedness prior to its express maturityprovided further, andthat, in each case, such failure is unremedied and is not validly waived by the principal amount holders of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and documents governing such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) dayssection;
(viiig) except as permitted by this Indenture an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (including with respect to any limitations)i) liquidation, any Note Guarantee is held in any judicial proceeding to be unenforceable winding-up, reorganization or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for other relief in respect of the Issuer, any Guarantor Borrower or any of the Issuer’s Restricted Subsidiaries Material Subsidiary (other than any Finance Subsidiary that is not a Significant Subsidiary Borrower) or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiarydebts, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its propertyProperty, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Borrower) or for a substantial part of its Property, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries foregoing shall be entered;
(h) any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary Borrower) shall (i) commences a voluntary case voluntarily commence any proceeding or file any petition seeking liquidation, winding up, reorganization or other relief under any Bankruptcy Law Federal, state or consents to the entry of an order for relief foreign bankruptcy, insolvency, receivership or similar law now or hereafter in an involuntary case under any Bankruptcy Laweffect, (ii) consents consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or taking possession by similar official for any Borrower or any Material Subsidiary (other than any Finance Subsidiary) or for a Custodian substantial part of its Property, (iv) file an answer admitting the Issuer, material allegations of a petition filed against it in any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiariesproceeding, (iiiv) effects any make a general assignment for the benefit of creditors or (ivvi) admits take any action for the purpose of effecting any of the foregoing;
(i) any Borrower or any Material Subsidiary (other than any Finance Subsidiary that is not a Borrower) shall become unable, admit in writing that it its inability or fail generally is not paying to pay its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.due;
(bj) If one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 shall be rendered against any Borrower or any Subsidiary (to the extent not paid and not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and does not deny coverage) and the same shall remain undischarged for a Default or an Event period of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 60 consecutive days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee during which execution shall not be deemed effectively stayed, or any action shall be legally taken by a judgment creditor to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default attach or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence levy upon any Property of any Default stating what action, if any, they are taking with respect Borrower or any Subsidiary to that Default.enforce any such judgment;
(ck) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no an ERISA Event of Default shall have occurred and that, when taken together with all other ERISA Events that have occurred for which liability has not been fully satisfied, would reasonably be continuing as expected to result in a result of such failure.Material Adverse Effect;
Appears in 1 contract
01Events of Default. (a) Each Upon the occurrence and during the continuance of any of the following shall be events (each, an “Event of Default”:):
(ia) default for 30 days shall be made in the payment of any principal of any Loan when and as the same shall become due of interest and payable, whether at the due date thereof or at a date fixed for prepayment (including any duration feeswhether optional or mandatory) thereof or Additional Amounts, if any, with respect to the Notesby acceleration thereof or otherwise;
(iib) default shall be made in the payment of any interest on any Credit Extension or any Fee or any other amount (other than an amount referred to in clause (a) above) due under any Loan Document, when and as the same shall become due (and payable, whether at maturity, upon redemption or otherwise) of the principal of, or premium due date thereof (including the Redemption Premium), if any, on, the Notesan Interest Payment Date) or at a date fixed for prepayment (whether optional or mandatory) or by acceleration or demand thereof or otherwise and such default shall continue unremedied for a period of three (3) Business Days;
(iiic) failure any representation or warranty made or deemed made by the Issuer any Loan Party or relevant Guarantor to comply with Sections 4.11 Security Provider in (or 5.01;
(ivin connection with) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee any Loan Document or the Holders borrowing of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performanceTerm Loans hereunder, or breachin any certificate, financial statement or a covenant other instrument furnished in connection with or agreement which is specifically dealt with in clause (i)required to be given or delivered by any Loan Party or Security Provider pursuant to any Loan Document, (ii) shall prove to have been false or (iii) above), the Notes or the Note Guarantees or (y) misleading in any material respect with any of the agreements in any other Note Documentwhen so made, deemed made or so furnished;
(vd) default under shall be made in the due observance or performance by any mortgageCompany of any covenant, indenture condition or agreement contained in Section 5.02(a), Section 5.03(a) (as it relates to a Loan Party), Section 5.04, Section 5.08, Section 5.10, Section 5.13, Section 5.14, Section 5.16, Section 5.18, Section 5.21 or in Article VI;
(e) default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) above) and such default shall continue unremedied or shall not have been waived (i) in the case of the Agency Fee Letter, for a period of five Business Days, and (ii) in the case of any other covenant, condition or agreement for a period of 30 days after the earlier of (x) any Loan Party obtaining knowledge thereof and (y) written notice thereof from the Administrative Agent or the Required Lenders to the Borrower;
(f) any Company shall (i) fail to pay any principal, premium or interest, regardless of amount, due in respect of any Financial Indebtedness (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument under which there may be issued evidencing or by which there may be secured governing any such Financial Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or evidenced any Indebtedness for money borrowed by to permit the Issuer holder or any holders of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Financial Indebtedness or Guarantee now existsa trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or is created after the Signing Dateboth) to cause, if that default:
(A) is caused by a failure such Financial Indebtedness to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness become due prior to its express maturitystated maturity or become subject to a mandatory offer to purchase by the obligor; provided, and, in each case, that it shall not constitute an Event of Default pursuant to this clause (f) unless the principal aggregate amount of any all such Financial Indebtedness that is due referred to in clauses (i) and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, (ii) equals or exceeds $125.0 million in aggregate10,000,000 at any one time;
(vig) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder Insolvency Proceeding shall be declared invalid commenced or unenforceable an involuntary petition shall be filed in a final non-appealable decision of a court of competent jurisdiction seeking (i) relief in respect of any Company or of a substantial part of the Issuer property of any Company, under the Bankruptcy Code, as now constituted or hereafter amended, or any Guarantor other federal, state or foreign bankruptcy, insolvency, receivership or similar Legal Requirement, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company for a substantial part of the property of any Company; or (iii) the winding-up or liquidation of any Company; and such proceeding or petition shall assert in writing that continue undismissed for 60 days or an Order approving or ordering any such security interest is invalid or unenforceable and any such Default continues for ten (10) daysof the foregoing shall be entered;
(h) any Company shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar Legal Requirement; (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any Insolvency Proceeding or the filing of any petition described in clause (g) above; (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company or for a substantial part of the property of any Company; (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding; (v) make a general assignment for the benefit of creditors; (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due; (vii) except to the extent permitted by Section 6.05, wind up or liquidate; or (viii) except as permitted take any action for the purpose of effecting any of the foregoing;
(i) one or more Orders for the payment of money in an aggregate amount of $10,000,000 or more that are not covered by this Indenture insurance from an unaffiliated insurance company with an A.M. Best financial strength rating of at least A- (including it being understood that even if such amounts are covered by insurance from such an insurance company, such amounts shall count against such basket if responsibility for such amounts has been denied by such insurance company or such insurance company has not been promptly notified of such amounts) shall be rendered against any Company or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Company to enforce any such Order;
(j) one or more ERISA Events shall have occurred that, when taken together with all other such ERISA Events that have occurred, or any event similar to the foregoing shall have occurred or exists with respect to any limitations)a Non-U.S. Plan, any Note Guarantee is held including, but not limited to, the winding-up of the Non-U.S. Plan, in any judicial proceeding such case that would reasonably be expected to result in a Material Adverse Effect;
(k) any security interest and Xxxx purported to be unenforceable or invalid or ceases for created by any reason Security Document shall cease to be in full force and effect, or any Guarantor shall cease to give the Collateral Agent, for the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents (including a valid, enforceable, perfected First Priority (except as otherwise expressly provided in this Agreement or any Person acting such Security Document) Lien on and security interest in, all of the Collateral (other than an immaterial portion) thereunder) in favor of the Collateral Agent, or shall be asserted by or on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the IssuerCompany not to be, a Guarantor valid, enforceable, perfected, First Priority (except as otherwise expressly provided in this Agreement or a Significant Subsidiary enters such Security Document) Lien on and security interest in the Collateral (xother than an immaterial portion) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.covered thereby;
Appears in 1 contract
01Events of Default. (a) Each If any of the following shall be events (each, an “Event of Default”) shall occur:
(ia) default the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for 30 days in the payment when due of interest (including any duration fees) prepayment thereof or Additional Amounts, if any, with respect to the Notesotherwise;
(iib) default the Borrower shall fail to pay any interest on any Loan, or any fee or any other amount (other than an amount referred to in the payment when due clause (at maturity, upon redemption or otherwisea) of this Section) payable under this Loan Agreement or under any other Loan Document, when and as the principal ofsame shall become due and payable, or premium (including the Redemption Premium), if any, on, the Notesand such failure shall continue unremedied for a period of 30 calendar days;
(iiic) failure any representation or warranty made or deemed made by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount on behalf of the Notes then outstanding voting as a single class to comply (x) Borrower in or in connection with this Loan Agreement or any of the agreements in this Indenture (other than a default in performanceLoan Document or any amendment or modification hereof or thereof, or breachany waiver hereunder or thereunder, or a covenant in any certificate or agreement which is specifically dealt other document furnished pursuant to or in connection with in clause (i)this Loan Agreement or any other Loan Document or any amendment or modification hereof or thereof, (ii) or (iii) above)any waiver hereunder or thereunder, the Notes or the Note Guarantees or (y) shall prove to have been incorrect in any material respect with (or, in the case of any of the agreements in such representation or warranty under this Loan Agreement or any other Note DocumentLoan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made;
(vd) default under the Borrower shall fail to observe or perform any mortgagecovenant, indenture condition or instrument under which there may be issued agreement contained in this Loan Agreement or by which there may be secured any other Loan Document (other than those specified in clause (a) or evidenced any Indebtedness (b) of this Section) and such failure shall continue unremedied for money borrowed a period of 45 or more calendar days after notice thereof by the Issuer or any of its Restricted Subsidiaries (Administrative Agent or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed Required Lenders to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregateBorrower;
(vie) failure by the Issuer Borrower or any Restricted Subsidiary that is Guarantor commences a Significant Subsidiary voluntary case or other proceeding seeking liquidation, judicial or extrajudicial reorganization or other relief with respect to itself or its Indebtedness under any group bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to any such relief in an involuntary case or other proceeding commenced against it, or makes a general assignment or conveyance for the benefit of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by creditors;
(f) a court or courts of competent jurisdiction aggregating enters an order or decree against the Borrower or any Subsidiary Guarantor for liquidation, reorganization or other relief with respect to it or its Indebtedness under any bankruptcy, insolvency or other similar law now or hereafter in excess of $125.0 million (exclusive of any amounts effect; provided that such order or decree shall remain undismissed and unstayed for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effectcalendar days;
(viig) any security interest event occurs that under the Security Documents on laws of Brazil or any Collateral having a Fair Market Value political subdivision thereof has substantially the same effect as any of the events referred to in excess any of $25.0 million shall, at clauses (e) or (f) of this Section;
(h) any time, cease Subsidiary Guarantee ceases to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture Loan Agreement) and remains not in effect for a period of 60 or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) more calendar days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any a Subsidiary Guarantor or any Person acting on behalf of any such Guarantor, that is a Subsidiary denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 daysSubsidiary Guarantee; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences except as otherwise expressly permitted by the Collateral Documents, the Intercreditor Agreement or the Loan Agreement, the Collateral Agent fails or ceases to have a voluntary case under any Bankruptcy Law or consents to valid and perfected lien in the entry of an order for relief in an involuntary case under any Bankruptcy Law, Collateral (iiwith the priority required by the Intercreditor Agreement) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors the Lenders; then, and in every such event (other than an event with respect to the Borrower described in clause (e), (f) or (ivg) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event this Section), and at any time thereafter during the continuance of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times:
(i) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other actionnotice of any kind, its status all of which are hereby waived by the Borrower; and
(ii) subject to the terms of the Intercreditor Agreement, exercise on behalf of itself and what action the Issuer is taking or proposes Lenders all rights and remedies available to take it and the Lenders under the Loan Documents and Applicable Law; provided that, in case of any event with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default the Borrower described in clause (e), (f) or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s(g) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify Section, the Trustee within 30 days principal of the occurrence Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any Default stating what actionkind, if any, they all of which are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused hereby waived by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failureBorrower.
Appears in 1 contract
Samples: Loan Agreement
01Events of Default. Upon the occurrence and during the continuance of the following events ("Events of Default"):
(a) Each default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment (whether voluntary or mandatory) thereof or by acceleration thereof or otherwise;
(b) default shall be made in the payment of any interest on any Loan or any Fee or any other amount (other than an amount referred to in paragraph (a) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made in or in connection with any Loan Document or the borrowings hereunder, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;
(d) default shall be made in the due observance or performance by any Company Entity of any covenant, condition or agreement contained in Section 5.02(a) or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by any Company Entity of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (a), (b) or (d) immediately above) and such default shall continue unremedied or shall not be waived for a period of 30 days after written notice thereof from the Lender to the Borrower;
(f) any Company Entity shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer purchase by the obligor; provided that it shall not constitute an Event of Default pursuant to this paragraph (f) unless the aggregate amount of all such Indebtedness referred to in clauses (i) and (ii) exceeds $25.0 million at any one time (provided that, in the case of Hedging Obligations, the amount counted for this purpose shall be the amount payable by all Company Entities if such Hedging Obligations were terminated at such time);
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Company Entity, or of a substantial part of the following property of any Company Entity, under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law; (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Company Entity or for a substantial part of the property of any Company Entity; or (iii) the winding-up or liquidation of any Company Entity; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) any Company Entity shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law; (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (g) above; (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Company Entity or for a substantial part of the property of any Company Entity; (iv) file an “Event answer admitting the material allegations of Default”:a petition filed against it in any such proceeding; (v) make a general assignment for the benefit of creditors; (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due; (vii) take any action for the purpose of effecting any of the foregoing; or (viii) wind up or liquidate;
(i) default one or more judgments, orders or decrees for 30 days in the payment when due of interest (including any duration fees) or Additional Amounts, if any, with respect to the Notes;
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided money in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal an aggregate amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at shall be rendered against any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document Company Entity or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, combination thereof and the continuance of any such decree same shall remain undischarged, unvacated or order for relief or any such other decree or order unstayed and in effect unbonded for a period of 60 30 consecutive days or (B) the Issuerduring which execution shall not be effectively stayed, any Guarantor or any action shall be legally taken by a judgment creditor to levy upon properties of any Company Entity to enforce any such judgment;
(j) one or more ERISA Events or noncompliance with respect to Foreign Plans shall have occurred that, in the reasonable opinion of the Issuer’s Restricted Subsidiaries Lender, when taken together with all other such ERISA Events and noncompliance with respect to Foreign Plans that is have occurred, could reasonably be expected to result in a Significant Subsidiary Material Adverse Effect or in the imposition of a Lien on any properties of a Company Entity;
(k) any Loan Document or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under material provisions thereof shall at any Bankruptcy Law or consents to the entry of an order time and for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found reason be declared by a court of competent jurisdiction not to be so paying such debts.null and void, or a proceeding shall be commenced by the Borrower or any other person, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or the Borrower shall repudiate or deny any portion of its liability or obligation for the Obligations;
(bl) If any Company Entity shall be prohibited or otherwise restrained from conducting the business theretofore conducted by it in any manner that has or could reasonably be expected to result in a Default Material Adverse Effect by virtue of any determination, ruling, decision, decree or order of any court or Governmental Authority of competent jurisdiction; then, and in every such event (other than an Event event with respect to the Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, the Lender may by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other actionObligations of the Borrower accrued hereunder and under any other Loan Document, its status shall become forthwith due and what action the Issuer is taking payable, without presentment, demand, protest or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a any other notice of default at its corporate trust officer any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of in any Default stating what actionevent, if any, they are taking with respect to that Default.
the Borrower described in paragraph (cg) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call(h) above, the provision Commitments shall automatically terminate and the principal of such report the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other Obligations of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or conference call shall cure a Default caused any other notice of any kind, all of which are hereby expressly waived by the failure to provide such report Borrower, anything contained herein or conference call prior in any other Loan Document to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failurecontrary notwithstanding.
Appears in 1 contract
01Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) Each of the following shall be an “Event of Default”:
(i) default for 30 days in the payment when due of interest (including any duration fees) representation or Additional Amounts, if any, with respect to the Notes;
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements warranty made in this Indenture (Agreement or any other than a default in performance, Loan Document shall prove to have been false or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) misleading in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries when made (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiariesdeemed made), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(Bb) results any report, statement, certificate, schedule or other document or information furnished (whether prior to, on or after the Effective Date) in connection with this Agreement or any of the other Loan Documents shall prove to have been false or misleading in any material respect when furnished (or deemed furnished); or
(c) any default, whether in whole or in part, shall occur in the acceleration payment of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any Advance, or shall occur and continue for more than three Business Days in the payment of any interest on or any other amount respecting the Advances or any of the other obligations of the Borrowers under the Loan Documents; or
(d) any default, whether in whole or in part, shall occur in the due observance or performance of any covenant, term or provision to be performed (i) under Sections 5.01(a)(ii), 5.02(e) or 5.03 of this Agreement or (ii) under Sections 5.01(b) or 5.02 of this Agreement (other than under Section 5.02(e) hereof) and such Indebtedness that is default described in this clause (ii) shall continue for a period of five Business Days after the earlier of notice thereof to or knowledge thereof by either Borrower; or
(e) any default, whether in whole or in part, shall occur in the due and has not been paid, together with the principal amount observance or performance of any other such Indebtedness that is due covenant, term or provision to be performed under this Agreement and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure other Loan Documents by the Issuer either Borrower or any Restricted Subsidiary that is a Significant Subsidiary or other party thereto (other than any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liabilityLender), which judgments default is not described in any other subsection of this Section, and such default shall not have been discharged or waived and there shall have been continue for a period of 60 consecutive ten days during which a stay after the earlier of enforcement notice thereof to or knowledge thereof by either Borrower; provided, however, that if such default is capable of being cured and if the Borrowers shall have commenced to cure such judgment or orderdefault within such period and shall proceed continuously in good faith and with due diligence to cure such default, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any then such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder period instead shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 thirty days; or
(Af) (i) any payment default of $10,000,000 or more shall occur under any instrument or agreement (other than a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (xLoan Document) a decree or order for relief in respect respecting any Debt of the Issuer, any Guarantor either Borrower or any of their Subsidiaries, unless payment shall be made or action shall be taken within three Business Days after such default in an amount or manner sufficient to cure it, provided that such payment or action will not result in a breach of any term or provision of this Agreement and the Issuer’s Restricted other Loan Documents, with the various financial measurements and covenants set forth in Section 5.03 of this Agreement being recalculated on a pro forma basis (from the then most recent quarterly or subsequent pro forma calculations) to include the effect of any such payment or (ii) any Debt of either Borrower or of any of their Subsidiaries that is of $15,000,000 or more in principal or notional amount shall be accelerated or otherwise become due or be required to be prepaid, repurchased or redeemed (other than pursuant to a Significant Subsidiary regularly scheduled mandatory prepayment, repurchase or redemption or the application of the change of control provision contained in any Debt instrument, as in effect on the date hereof, or any group substantially identical provision contained in any subsequent issuance of debt) prior to its scheduled maturity; or
(g) either Borrower or any of their Significant Subsidiaries shall (i) fail or be unable to pay its debts generally as they become due, (ii) make a general assignment for the benefit of its Restricted Subsidiaries thatcreditors, taken together(iii) apply for or consent to the appointment of a receiver, would constitute trustee, assignee, custodian, sequestrator, liquidator or similar official for itself or any of its assets and properties, (iv) commence a Significant Subsidiary voluntary case for relief as a debtor under the United States Bankruptcy Code, (v) file with or otherwise submit to any governmental authority any petition, answer or other document seeking (A) reorganization, (B) an arrangement with creditors or (C) to take advantage of any other present or future applicable law respecting bankruptcy, reorganization, insolvency, readjustment of debts, relief of debtors, dissolution or liquidation, (vi) file or otherwise submit any answer or other document admitting or failing to contest the material allegations of a petition or other document filed or otherwise submitted against it in an involuntary case or any proceeding under any Bankruptcy Law or such applicable law, (yvii) be adjudicated a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or (viii) take any action for the purpose of effecting any of the foregoing; or
(h) any case, proceeding or other action shall be commenced against either Borrower or any of their Significant Subsidiaries for the purpose of effecting, or an order, judgment or decree shall be entered by any court of competent jurisdiction approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of (in whole or in respect part), anything specified in subsection (g) of the Issuerthis Section, any such Guarantor or any such Subsidiary receiver, trustee, assignee, custodian, sequestrator, liquidator or group other official shall be appointed with respect to either Borrower or any of Restricted Subsidiaries under any Bankruptcy Lawtheir Significant Subsidiaries, or appointing shall be appointed to take or shall otherwise acquire possession or control of all or a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, the assets and properties of either Borrower or ordering the winding up or liquidation any of its affairstheir Significant Subsidiaries, and any of the continuance of any such decree or order for relief or any such other decree or order foregoing shall continue unstayed and in effect for any period of sixty days; or
(i) one or more final judgments for the payment of money in excess of an aggregate of $10,000,000 shall be rendered against either Borrower or any of their Subsidiaries and the same shall remain undischarged for a period of 60 consecutive thirty days during which levy and execution shall not be effectively stayed or contested in good faith; or
(j) either Borrower or any ERISA Affiliate shall, or shall be reasonably expected to, incur liability as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of either Borrower or any ERISA Affiliate from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer Plan; provided that any such event(s) (individually or in the aggregate with any other such event(s)) would be reasonably likely to have or has had (in the reasonable judgment of the Required Lenders) a Material Adverse Effect; or
(k) the Holding Company shall own less than all of the outstanding securities issued by the Operating Company, or any other Person shall acquire any option, warrant or other right to acquire any of those securities; or
(l) the Xxxxxxxx Family shall cease to own (in the aggregate) at least fifty-one percent (51.00%) of the issued and outstanding shares of Class A Stock of the Holding Company; or any other Person shall acquire any option, warrant or other right to acquire (from the Xxxxxxxx Family, the Holding Company or otherwise) any securities issued by the Holding Company that, if exercised, would result in the Xxxxxxxx Family holding less than 51% of such stock; or
(m) the Board of Directors of the Holding Company shall submit to its shareholders for adoption, or the shareholders of the Holding Company shall adopt, any supplement, modification or amendment to or restatement of the certificate of incorporation or the by-laws of the Holding Company that would in any way directly or indirectly (i) alter the relative voting rights or powers of the classes of the capital stock of the Holding Company, (ii) add any additional classes of capital stock with any voting rights, or (iii) adversely affect the rights, powers, privileges, remedies or interests of the Agent or the Lenders under this Agreement or any other Loan Document, in any such case without the prior written consent of the Required Lenders; then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank or a Lender pursuant to Section 2.16(d)) and of each Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, (A) by notice to the Borrowers, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers, (B) by notice to each party required under the Issuerterms of any agreement in support of which a Letter of Credit is issued, any Guarantor or any of the Issuer’s Restricted Subsidiaries request that is all obligations under such agreement be declared to be due and payable and (C) by notice to each Issuing Bank, direct such Issuing Bank to deliver a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents Default Termination Notice to the beneficiary of each Letter of Credit issued by it, and each Issuing Bank shall deliver such Default Termination Notices; provided, however, that in the event of an actual or deemed entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
either Borrower under the United States Bankruptcy Code, (c1) If any report the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank or conference call required by a Lender pursuant to Section 4.19 is provided before 2.04(c) or Section 2.16(d)) and of each Issuing Bank to issue Letters of Credit shall automatically be terminated and (2) the 90th day after the deadlines indicated for Advances, all such report or conference call, the provision of interest and all such report or conference call amounts shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred automatically become and be continuing as a result due and payable, without presentment, demand, protest or any notice of such failureany kind, all of which are hereby expressly waived by each Borrower.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
01Events of Default. (a) Each If any of the following shall be events (any such event, an “Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of Holdings, the Borrower or any of its Subsidiaries in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d) Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries shall fail to observe or perform (i) any covenant, condition or agreement contained in Section 5.02(a), 5.04 (with respect to the existence of Holdings or the Borrower) or 5.10 or in Article VI (other than Section 6.11) or (ii) any covenant contained in Section 6.11; provided that a Default as a result of a breach of Section 6.11 is subject to cure pursuant to Section 7.02; provided further that an Event of Default under Section 6.11 shall not constitute an Event of Default with respect to any Term Loan unless and until (A) the Revolving Lenders have actually declared all outstanding obligations under the Revolving Loans to be immediately due and payable in accordance with this Agreement as a result of the Borrower’s failure to perform or observe any covenant set forth in Section 6.11 or (B) such Event of Default results in a cross-default to other Material Indebtedness of Holdings, the Borrower or any of its Subsidiaries, such Indebtedness is accelerated and such acceleration would otherwise cause an Event of Default hereunder;
(e) Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
(f) Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events (other than events in the nature of defaults or events of default) occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section will apply to any failure to make any payment required as a result of any such termination or similar event);
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of Holdings, any Intermediate Parent, the Borrower or any Material Subsidiary or its debts, or of a material part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for Holdings, any Intermediate Parent, the Borrower or any Material Subsidiary or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) default for 30 days in the payment when due of interest (including Holdings, any duration fees) or Additional Amounts, if any, with respect to the Notes;
(ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, onIntermediate Parent, the Notes;
(iii) failure by the Issuer Borrower or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause Material Subsidiary shall (i)) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in paragraph (h) of this Section, (iii) above)apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for Holdings, any Intermediate Parent, the Notes Borrower or any Material Subsidiary or for a material part of its assets, (iv) file an answer admitting the Note Guarantees material allegations of a petition filed against it in any such proceeding or (yv) in any material respect with any make a general assignment for the benefit of the agreements in any other Note Documentcreditors;
(vj) default under any mortgage, indenture one or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness more enforceable judgments for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided money in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal an aggregate amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million 50,000,000 (exclusive to the extent not covered by insurance as to which the insurer has been notified of such judgment or order and has not denied coverage) shall be rendered against Holdings, any amounts Intermediate Parent, the Borrower and any of its Subsidiaries or any combination thereof and the same shall remain undischarged for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, execution shall not have been in effectbe effectively stayed, or any judgment creditor shall legally attach or levy upon assets of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries to enforce any such judgment;
(viik) (i) an ERISA Event occurs that has resulted or could reasonably be expected to result in liability of any Loan Party in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect, or (ii) any security interest Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that could reasonably be expected to result in a Material Adverse Effect;
(l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, with the priority required by the applicable Security Document, except (i) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents, (ii) as a result of the Administrative Agent’s failure to maintain possession of any stock certificates, promissory notes, certificates of title or other instruments delivered to it under the Security Documents on or (iii) as to Collateral consisting of real property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage;
(m) any Collateral having material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted by any Loan Party not to be a Fair Market Value in excess legal, valid and binding obligation of $25.0 million shall, at any time, Loan Party that is party thereto other than as expressly permitted hereunder or thereunder;
(n) any Guarantees of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and in each case, other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitationsLoan Documents), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(Ao) a court having jurisdiction over the IssuerChange in Control shall occur; then, a Guarantor or a Significant Subsidiary enters and in every such event (x) a decree or order for relief in other than an event with respect of the Issuerto Holdings, any Guarantor Intermediate Parent, or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary Borrower described in an involuntary case or proceeding under any Bankruptcy Law paragraph (h) or (yi) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairsthis Section), and at any time thereafter during the continuance of any such decree or order for relief or any such other decree or order unstayed event, the Administrative Agent may, and in effect for a period of 60 consecutive days or (B) at the Issuer, any Guarantor or any request of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary Required Lenders shall, by notice to the Borrower, take either or any group both of its Restricted Subsidiaries thatthe following actions, taken together, would constitute a Significant Subsidiary at the same or different times: (i) commences a voluntary case under any Bankruptcy Law or consents to terminate the entry of an order for relief in an involuntary case under any Bankruptcy LawCommitments, and thereupon the Commitments shall terminate immediately, and (ii) consents declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the appointment of or taking possession by a Custodian principal of the IssuerLoans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to Holdings, any such Guarantor Intermediate Parent, or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, Borrower described in paragraph (iiih) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(si) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer Section, the Commitments shall also notify automatically terminate immediately and the Trustee within 30 days principal of the occurrence Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any Default stating what actionkind, if any, they all of which are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused hereby waived by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failureBorrower.
Appears in 1 contract
01Events of Default. (a) Each If any of the following shall events occurs, it is hereby defined as and is declared to be and to constitute an “Event event of Defaultdefault”:
(ia) default for 30 days Default in the payment when on the due date of the interest (including on any duration fees) or Additional Amounts, if any, with respect to the NotesBonds hereby secured and outstanding;
(iib) default Default in the payment when on the due (at maturity, upon redemption or otherwise) date of the principal ofof or premium on any Bond hereby secured, whether at the stated maturity thereof, or premium (including upon proceedings for the Redemption Premium)redemption thereof, if any, on, or upon the Notesmaturity thereof by declaration as hereinafter provided;
(iiic) failure by Default in the Issuer performance or relevant Guarantor to comply with Sections 4.11 observance of any other of the covenants or 5.01;
agreements of the Corporation in this Indenture or in the Bonds, and the continuance thereof for a period of sixty (iv60) failure by the Issuer or relevant Guarantor for 60 days after written notice thereof to the Issuer Corporation by the Trustee Trustee;
(d) The Corporation:
(1) admits in writing its inability to pay its debts generally as they become due; (2) files a petition in bankruptcy; (3) makes an assignment for the benefit of its creditors; or (4) consents to or fails to contest the Holders appointment of at least 30% in aggregate principal amount a receiver or trustee for itself or of the Notes then outstanding voting as whole or any substantial part of the Premises or lease rentals due under the Lease;
(1) The Corporation is adjudged insolvent by a single class to comply court of competent jurisdiction;
(x2) with the Corporation, on a petition in bankruptcy filed against the Corporation, is adjudged a bankrupt; or (3) an order, judgment or decree is entered by any court of competent jurisdiction appointing, without the consent of the Corporation, a receiver or trustee of the Corporation or of the whole or any substantial part of the Premises or lease rentals due under the Lease, and any of the agreements in this Indenture aforesaid adjudications, orders, judgments or decrees is not vacated, set aside or stayed within sixty (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii60) or (iii) above), days from the Notes or the Note Guarantees or (y) in any material respect with any date of the agreements in any other Note Documententry thereof;
(vf) default under Any judgment is recovered against the Corporation or any mortgage, indenture attachment or instrument under which there may be issued other court process issues that becomes or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or creates a lien upon any of its Restricted Subsidiaries property, and such judgment, attachment or court process is not discharged or effectually secured within sixty (or 60) days;
(g) The Corporation files a petition under the payment provisions of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now existsUnited States Bankruptcy Code, or is created after files an answer seeking the Signing Date, if that default:relief provided in said Bankruptcy Code;
(Ah) A court of competent jurisdiction enters an order, judgment or decree approving a petition filed against the Corporation under the provisions of said Bankruptcy Code, and such judgment, order or decree is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on not vacated, set aside or stayed within one hundred twenty (120) days from the date of the entry thereof;
(i) Under the provisions of any other law now or hereafter existing for the relief or aid of debtors, any court of competent jurisdiction assumes custody or control of the Corporation or of the whole or any substantial part of the Premises or lease rentals due under the Lease, and such custody or control is not terminated within one hundred twenty (120) days from the date of assumption of such custody or control;
(j) Failure of the Corporation to bring suit to mandate the governing board or officials of the City to levy a tax to pay the rental provided in the Lease, to file a claim with the Treasurer of the State as contemplated by Section 5.12, or to take such other action to enforce the Lease as is reasonably requested by the Trustee, if such rental is more than sixty (60) days in default; or
(Bk) results in the acceleration Any event of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest default occurs under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force Lease. Except for items (a) and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trusteeabove, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have as having knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice any other items of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused until it has been properly notified in writing by the failure to provide such report Corporation, City or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failureBondholders.
Appears in 1 contract
Samples: Trust Indenture
01Events of Default. (a) Each of the following shall be an An “Event of Default”” occurs with respect to Notes if:
(ia) there is a default in any payment of interest on any Note when due and payable, and such default continues for a period of 30 days days;
(b) there is a default in the payment when due of interest (including any duration fees) principal or Additional Amountspremium, if any, with respect to the Notesof any Note when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
(iic) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, on, the Notes;
(iii) there is a failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor Issuers for 60 120 days after receipt of written notice to the Issuer given by the Trustee or the Holders holders of at least not less than 30% in aggregate principal amount of the Notes then outstanding voting as (with a single class copy to the Trustee) to comply (x) with any of the its obligations, covenants or agreements in this Indenture Section 4.02;
(d) there is a failure by the Company or any Restricted Subsidiary for 60 days after written notice given by the Trustee or the holders of not less than 30% in aggregate principal amount of the Notes then outstanding (with a copy to the Trustee) to comply with its other obligations, covenants or agreements (other than a default referred to in performance, or breach, or a covenant or agreement which is specifically dealt with in clause clauses (ia), (iib) or and (iiic) above), ) contained in the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Documentthis Indenture;
(ve) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer Company or any Restricted Subsidiary that is a Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Restricted Subsidiaries that, taken together, that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary) to pay any Indebtedness (other than Indebtedness owing to the Company or a Restricted Subsidiary or any Permitted Securitization Financing) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, in each case, if the total amount of such Indebtedness unpaid or accelerated exceeds $75 million or its foreign currency equivalent;
(f) the Company or any Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Subsidiaries that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary) pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors or takes any comparable action under any foreign laws relating to insolvency;
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Subsidiaries that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary) in an involuntary case;
(ii) appoints a Custodian of the Company or any Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Subsidiaries that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary) or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Company or any Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Subsidiaries that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary); or any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days;
(h) there is a failure by the Company or any Significant Subsidiary (other than any Special Purpose Securitization Subsidiary) (or any group of Subsidiaries that together would constitute a Significant Subsidiary, other than any Special Purpose Securitization Subsidiary) to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 75 million or its foreign currency equivalent (exclusive net of any amounts for which a are covered by enforceable insurance policies issued by solvent insurance company has acknowledged liabilitycarriers), which judgments shall are not have been discharged discharged, waived or waived and there shall have been stayed for a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effectdays;
(viii) the Subsidiary Guarantee of a Significant Subsidiary (or any security interest under group of Subsidiaries that together would constitute a Significant Subsidiary) with respect to the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease Notes ceases to be in full force and effect (other than except as a result of any action or inaction contemplated by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenturethereof) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the an Issuer or any Subsidiary Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten qualifies as a Significant Subsidiary (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf group of any such Guarantor, Subsidiaries that together would constitute a Significant Subsidiary) denies or disaffirms its obligations under its Note this Indenture or any Subsidiary Guarantee with respect to the Notes (except as contemplated by the terms thereof) and such Default continues for 10 days;
(j) unless such Liens have been released in accordance with the provisions of this Indenture, the Security Documents or the First Lien Intercreditor Agreement, the Liens in favor of the holders of the Notes with respect to all or substantially all of the Collateral cease to be valid or enforceable and such Default continues for 30 days; or
(Ak) there is a court having jurisdiction over failure by an Issuer or any Subsidiary Guarantor to comply for 60 days after notice to such Issuer or such Subsidiary Guarantor with its other agreements contained in the IssuerSecurity Documents except for a failure that would not be material to the holders of the Notes and would not materially affect the value of the Collateral taken as a whole. The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor court or any order, rule or regulation of the Issuer’s Restricted Subsidiaries that is any administrative or governmental body. However, a Significant Subsidiary or any group of its Restricted Subsidiaries thatdefault under clauses (c), taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law (d) or (yk) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would above shall not constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known until the Trustee notifies the Issuers or the holders of at least 30% in aggregate principal amount of outstanding Notes notify the Issuers, with a copy to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default default and the Issuers do not cure such default within the earlier of 90 days time specified in clauses (c), (d) or (k) hereof after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge receipt of such Default or a Responsible Officer receives a notice. Such notice of default at its corporate trust officer must specify the Default, demand that it be remedied and state that such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event is a “Notice of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.”
Appears in 1 contract
Samples: Indenture (Exela Technologies, Inc.)
01Events of Default. (a) Each In case of the happening of any of the following shall be events (each, an “Event of Default”:):
(i1) default for 30 days any representation or warranty made by Holdings, any Borrower or any other Loan Party herein or in the payment when due of interest (including any duration fees) other Loan Document or Additional Amounts, if any, with respect any certificate or document required to the Notes;
(ii) default in the payment when due (at maturity, upon redemption be delivered pursuant hereto or otherwise) of the principal ofthereto, or premium (including in completing any request for a Borrowing via the Redemption Premium)Portal, if any, on, the Notes;
(iii) failure by the Issuer proves to have been false or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) misleading in any material respect with any of the agreements in any other Note Documentwhen so made;
(v2) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or is made in the payment of which any principal of any Loan when and as the same becomes due and payable, whether at the due date thereof, at a date fixed for prepayment thereof, by acceleration thereof or otherwise (other than Swingline Loans that become Revolving Loans in accordance with Article II);
(3) default is guaranteed made in the payment of any interest on any Loan or the reimbursement of any L/C Disbursement or in the payment of any Fee or any other amount due under any Loan Document (other than an amount referred to in clause (2) of this Section 8.01), when and as the same becomes due and payable, and such default continues unremedied for a period of five Business Days;
(4) default is made in the due observance or performance by Holdings, any Borrower or any other Restricted Subsidiary or, solely with respect to Article VII, Holdings, of any covenant, condition or agreement contained in (a) Section 5.01(1), 5.05(1), 5.07, 5.08, 5.11 (but only if such default occurs during a Cash Dominion Period) or in Article VI or Article VII (in each case solely to the extent applicable to such Person) or (b) Section 5.04(10) and such default shall continue unremedied for a period of five Business Days (or, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, two Business Days) following notice thereof from the Administrative Agent to the Borrowers;
(5) default is made in the due observance or performance by any Borrower or any other Restricted Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (2), (3) and (4) of this Section 8.01) (in each case solely to the extent applicable to such Person), and such default continues unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrowers;
(a) any event or condition occurs that (i) results in any Material Indebtedness becoming due prior to its scheduled maturity or (ii) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (b) any Borrower or any Restricted Subsidiary fails to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided that this clause (6) will not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; provided, further, that such event or condition is unremedied and is not waived or cured by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal holders of such Indebtedness prior to the expiration any acceleration of the grace period provided Loans and termination of the Commitments pursuant to the final paragraph of this Section 8.01;
(7) a Change in such Indebtedness on Control occurs;
(8) an involuntary proceeding is commenced or an involuntary petition is filed in a court of competent jurisdiction seeking:
(a) relief in respect of Holdings, any Borrower or any of the date Material Subsidiaries, or of such defaulta substantial part of the property or assets of Holdings, any Borrower or any Material Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended or any other federal, state, or foreign bankruptcy, insolvency, receivership or similar law;
(b) the appointment of a receiver, interim receiver, monitor, trustee, custodian, sequestrator, conservator or similar official for Holdings, any Borrower or any of the Material Subsidiaries or for a substantial part of the property or assets of Holdings, any Borrower or any Restricted Subsidiary; or
(Bc) results the winding up or liquidation of Holdings, any Borrower or any Material Subsidiary (except, in the acceleration case of such Indebtedness prior to its express maturityany Material Subsidiary, in a transaction permitted by Section 6.05) and, in each caseany of clauses (a), (b) or (c), such proceeding or petition continues undismissed for 60 days or an order or decree approving or ordering any of the principal amount of any such Indebtedness that foregoing is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregateentered;
(vi9) failure by Holdings, any Borrower or any Material Subsidiary:
(a) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the Issuer United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law;
(b) consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (8) of this Section 8.01;
(c) applies for or consents to the appointment of a receiver, interim receiver, monitor, trustee, custodian, sequestrator, conservator or similar official for Holdings, any Borrower or any of the Material Subsidiaries or for a substantial part of the property or assets of Holdings, any Borrower or any Material Subsidiary;
(d) files an answer admitting the material allegations of a petition filed against it in any such proceeding;
(e) makes a general assignment for the benefit of creditors; or
(f) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due;
(10) any Borrower or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, fails to pay one or more final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 75.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liabilityto the extent not covered by insurance), which judgments shall are not have been discharged or effectively waived and there shall have been or stayed for a period of 60 45 consecutive days during which days, or any action is legally taken by a stay judgment creditor to levy upon assets or properties of enforcement of any Borrower or any other Subsidiary Loan Party to enforce any such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effectjudgment;
(vii11) an ERISA Event or ERISA Events occurs with respect to any Plan or Multiemployer Plan, which together with all other such ERISA Events, if any, is reasonably expected to have a Material Adverse Effect; or
(a) any material provision of any Loan Document ceases to be, or is asserted in writing by Holdings, any Borrower or any Restricted Subsidiary not to be, for any reason, a legal, valid and binding obligation of any party thereto, (b) any security interest purported to be created by any Security Document and to extend to assets that are included in the Borrowing Base or otherwise are not immaterial to Holdings, the Borrowers and the Restricted Subsidiaries on a consolidated basis ceases to be, or is asserted in writing by any Borrower or any other Loan Party not to be, a valid and perfected security interest in the securities, assets or properties covered thereby, except to the extent that any such loss of validity, perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application thereof, or from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under a Security Document or to file Uniform Commercial Code continuation statements or take any other action and except to the extent that such loss is covered by a lender’s title insurance policy and the Collateral Agent is reasonably satisfied with the credit of such insurer or (c) the Guarantees pursuant to the Security Documents on by any Collateral having a Fair Market Value in excess Loan Party of $25.0 million shall, at any time, of the Obligations cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms thereof) or are asserted in writing by Holdings, any Borrower or any Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations, except in the cases of clauses (a) and (b), in connection with an Asset Sale permitted by this Agreement; then, (i) upon the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment occurrence of any such security interest in accordance with the terms Event of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision Default (other than an Event of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations)Borrower described in clause (8) or (9) of this Section 8.01) and at any time thereafter during the continuance of such Event of Default, the Administrative Agent may and, at the request of the Required Lenders, will, by notice to the Borrowers, take any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid all of the following actions, at the same or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
different times: (A) a court having jurisdiction over terminate forthwith the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or Commitments; (B) declare the IssuerLoans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any Guarantor unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under any other Loan Document, will become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary Borrowers, anything contained herein or in any group other Loan Document to the contrary notwithstanding; (C) if the Loans have been declared due and payable pursuant to clause (B) above, demand cash collateral pursuant to Section 2.05(11); and (D) exercise all rights and remedies granted to it under any Loan Document and all of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case rights under any Bankruptcy Law other applicable law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Lawequity, and (ii) consents in any event with respect to any Borrower described in clause (8) or (9) of this Section 8.01, the appointment of or taking possession by a Custodian Commitments shall automatically terminate and the principal of the IssuerLoans then outstanding, together with accrued interest thereon and any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for unpaid accrued Fees and all or substantially all the property and assets other liabilities of the IssuerBorrowers accrued hereunder and under any other Loan Document, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they will automatically become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing payable and is actually known to a Responsible Officer of the Trustee, the Trustee Administrative Agent shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of made a Default unless a Responsible Officer has actual knowledge of such Default demand for cash collateral to the full extent permitted under Section 2.05(11), without presentment, demand, protest or a Responsible Officer receives a any other notice of default at its corporate trust officer and such notice specifies the Default or Event any kind, all of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they which are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused hereby expressly waived by the failure to provide such report Borrowers, anything contained herein or conference call prior in any other Loan Document to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failurecontrary notwithstanding.
Appears in 1 contract
Samples: Loan Agreement (Ulta Beauty, Inc.)
01Events of Default. (a) Each of the following events shall be an “Event of Default”:
(i) default for 30 days in the payment when due of interest (including any duration fees) or Additional Amounts, if any, ” with respect to the Notes:
(a) default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(iib) default in the payment when due (at maturity, upon redemption of principal or otherwise) of the principal of, or premium (including the Redemption Premium)premium, if any, onof any Note when due and payable on the Maturity Date, the Notesupon Optional Redemption, upon any required repurchase, upon declaration of acceleration or otherwise;
(iiic) failure by the Issuer or relevant Guarantor Company to comply with Sections 4.11 or 5.01;its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s conversion right;
(ivd) failure by the Issuer Company to issue an Asset Sale Offer Company Notice in accordance with Section 4.13(c)(iv), issue a Company Notice in accordance with Section 15.01(d), a Fundamental Change Company Notice in accordance with Section 15.02(c), or relevant Guarantor notice of a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii), in each case, when due;
(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company continues for 60 days after a written notice to the Issuer by from the Trustee or the Holders of at least 3025.00% in aggregate principal amount of the Notes then outstanding voting as a single class has been received by the Company to comply (x) with any of the its other agreements contained in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (i), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Documentthis Indenture;
(vg) default under by the Company or any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced Restricted Subsidiary of the Company with respect to any Indebtedness for money borrowed by the Issuer or any in an aggregate amount in excess of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries$5,000,000, whether such Indebtedness now exists or Guarantee now existsshall hereafter be created, or is created after the Signing Date, if that which default:
: (Ai) is caused by a failure to pay principal of such Indebtedness prior Indebtedness, at its stated final maturity (after giving effect to the expiration of the any applicable grace period periods) provided in such Indebtedness on the date of such (“payment default”); or
or (Bii) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, stated final maturity (the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate“cross-acceleration provision”);
(vih) a failure by the Issuer Company or any Restricted subsidiary to pay a final judgment or judgments (but for the avoidance of doubt, not including any settlements) for the payment of money in the aggregate in excess of $35,000,000 (or its foreign currency equivalent) or more (excluding any amounts covered by insurance or indemnities) rendered against the Company or any Restricted Subsidiary that of the Company, which judgment is not discharged, bonded, paid, waived or stayed within 60 days after (i) the date on which judgment becomes final or the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;
(i) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any group substantial part of Restricted Subsidiaries thatits property, taken togetheror shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, would constitute or shall make a Significant Subsidiarygeneral assignment for the benefit of creditors, or shall fail generally to pay final judgments entered by its debts as they become due;
(j) an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a court trustee, receiver, liquidator, custodian or courts other similar official of competent jurisdiction aggregating in excess the Company or such Significant Subsidiary or any substantial part of $125.0 million (exclusive of any amounts its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay days;
(k) (i) any Related Collateral Document or any material provision thereof, after delivery thereof pursuant to the terms of enforcement of such judgment this Indenture or order, by reason of an appeal, waiver or otherwisethe Related Collateral Documents, shall for any reason (other than pursuant to the terms hereof and thereof, including as a result of a transaction not have been in effect;
(viiprohibited under this Indenture) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect with respect to any material portion of the Collateral, (other than as ii) such security interest in a result material portion of any action the Collateral created, or inaction purported to be created, by the Security Agent Agreement shall for any reason cease to be enforceable and other than in accordance with of the same effect and priority purported to be created thereby, except to the extent that any such perfection or priority is not required pursuant to the terms of the relevant Security Document and this Indenturedefinition of “Collateral Requirement” or the Related Collateral Documents or any loss thereof results from the failure of the Collateral Agent to maintain possession of certificates or possessory collateral actually delivered to it representing securities pledged under the Related Collateral Documents, or (iii) for the Company or any reason other than the satisfaction in full of all Subsidiary Guarantor denies or disaffirms its obligations under this Indenture or the release or amendment of any such security interest Related Collateral Document, in accordance with each case, except for a failure that would not be material to the terms Holders of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in the Notes and would not materially and adversely affect the value of the Collateral taken as a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;whole; or
(viiil) except as permitted by this Indenture (including with respect to any limitations)Indenture, any the Note Guarantee of any Subsidiary Guarantor that is held in any judicial proceeding to be unenforceable or invalid or a Significant Subsidiary ceases for any reason to be in full force and effecteffect (except as contemplated pursuant to the Related Collateral Documents or Article 18 of this Indenture) or is declared null and void in a judicial proceeding and such default continues for 20 days after notice as provided below, or any Subsidiary Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary denies or any group of disaffirms in writing its Restricted Subsidiaries thatobligations under this Indenture or its Note Guarantee. Notwithstanding the foregoing, taken togethera Default under clauses (f), would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law (k) or (yl) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally this Section 6.01 is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer until the Trustee notifies the Company of such default or the Holders of not less than 25.00% of the Trustee, aggregate principal amount of the notes then outstanding notify the Company and the Trustee shall deliver to each Holder notice of the Default or Event of Default, and the Company does not cure such Default within the earlier of 90 days time specified after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge receipt of such Default or a Responsible Officer receives notice; provided that a notice of default at its corporate trust officer Default may not be given with respect to any action taken and reported publicly or to holders more than two (2) years prior to such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify Such notice must specify the Trustee within 30 days Default, demand that it be remedied and state that such notice is a notice of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.
Appears in 1 contract
01Events of Default. (a) Each of the following events shall be constitute an “Event of Default”.
(a) Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(i) any Obligor shall fail to pay any interest on any Loan or any fee due under the Loan Documents when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days or (ii) any Obligor shall fail to pay any other Obligation (other than an amount referred to in Section 11.01(a) and 11.01(b)(i)) when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days;
(c) any representation or warranty made or deemed made by or on behalf of Parent Guarantor or any of its Subsidiaries in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this DMS 17185250.10 Agreement or any other Loan Document or any amendment or modification hereof or thereof, shall: (i) prove to have been incorrect when made or deemed made to the extent that such representation or warranty contains any materiality or Material Adverse Effect qualifier; or (ii) prove to have been incorrect in any material respect when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality or Material Adverse Effect qualifier;
(d) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Section 8.02, 8.03 (with respect to an Obligor’s existence), 8.11, 8.12, 8.14, 8.16, 9 or 10;
(e) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in Section 11.01(a), (b) or (d)) or any other Loan Document, and, in the case of any failure that is capable of cure, if such failure shall continue unremedied for a period of 25 or more days;
(f) Parent Guarantor or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable after giving effect to any applicable grace or cure period as originally provided by the terms of such Indebtedness;
(g) (i) any material breach of, or “event of default” or similar event by any Obligor under, any Material Agreement, (ii) any material breach of, or “event of default” or similar event under, the documentation governing any Material Indebtedness shall occur, or (iii) any event or condition occurs (A) that results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this Section 11.01(g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Material Indebtedness;
(h) any Obligor:
(i) default for 30 days becomes insolvent, or generally does not or becomes unable to pay its debts or meet its liabilities as the same become due, or admits in the payment when due writing its inability to pay its debts generally, or declares any general moratorium on its indebtedness, or proposes a compromise or arrangement or deed of interest (including company arrangement between it and any duration fees) or Additional Amounts, if any, with respect to the Notesclass of its creditors;
(ii) default in commits an act of bankruptcy or makes an assignment of its property for the payment when due general benefit of its creditors or makes a proposal (at maturity, upon redemption or otherwise) files a notice of the principal of, or premium (including the Redemption Premiumits intention to do so), if any, on, the Notes;
(iii) failure by institutes any proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution, winding-up, examinership, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts or any other relief, under any federal, provincial or foreign Law now or hereafter in effect relating to bankruptcy, winding-up, DMS 17185250.10 insolvency, examinership, reorganization, receivership, plans of arrangement or relief or protection of debtors or at common law or in equity, or files an answer admitting the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01material allegations of a petition filed against it in any such proceeding;
(iv) failure by applies for the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee appointment of, or the Holders taking of at least 30% in aggregate principal amount possession by, a receiver, interim receiver, receiver/manager, examiner, sequestrator, conservator, custodian, administrator, trustee, liquidator, voluntary administrator, receiver and manager or other similar official for it or any substantial part of the Notes then outstanding voting as a single class its property; or
(v) takes any action, corporate or otherwise, to comply (x) with approve, effect, consent to or authorize any of the agreements actions described in this Indenture (other than a default in performance, Section 11.01(h) or breach, or a covenant or agreement which is specifically dealt with in clause (i), or otherwise acts in furtherance thereof or fails to act in a timely and appropriate manner in defense thereof;
(i) any petition is filed, application made or other proceeding instituted against or in respect of Parent Guarantor or any Subsidiary:
(i) seeking to adjudicate it an insolvent;
(ii) or seeking a receiving order against it;
(iii) aboveseeking liquidation, dissolution, winding-up, examinership, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), the Notes deed of company arrangement or the Note Guarantees composition of it or (y) in any material respect with any of the agreements in its debts or any other Note Document;
(v) default relief under any mortgagefederal, indenture provincial or instrument under which there may be issued foreign law now or by which there may be secured hereafter in effect relating to bankruptcy, winding-up, insolvency, examinership, reorganization, receivership, plans of arrangement or evidenced any Indebtedness for money borrowed by the Issuer relief or any protection of its Restricted Subsidiaries (debtors or the payment of which is guaranteed by the Issuer at common law or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such defaultequity; or
(Biv) results seeking the entry of an order for relief or the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator, examiner, voluntary administrator, receiver and manager or other similar official for it or any substantial part of its property, and such petition, application or proceeding continues undismissed, or unstayed and in effect, for a period of sixty (60) days after the institution thereof; provided that if an order, decree or judgment is granted or entered (whether or not entered or subject to appeal) against Parent Guarantor or such Subsidiary thereunder in the acceleration interim, such grace period will cease to apply; provided further that if Parent Guarantor or such Subsidiary files an answer admitting the material allegations of such Indebtedness prior to its express maturity, and, a petition filed against it in each case, the principal amount of any such Indebtedness that is due and has not been paidproceeding, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregategrace period will cease to apply;
(vij) failure by any other event occurs which, under the Issuer laws of any applicable jurisdiction, has an effect equivalent to any of the events referred to in either of Section 11.01(h) or any Restricted Subsidiary that is a Significant Subsidiary (i);
(k) one or any group more judgments or settlements for the payment of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating money in an aggregate amount in excess of $125.0 million 250,000 (exclusive of or the Equivalent Amount in other currencies) shall be rendered against or entered into by any amounts Obligor or any combination thereof and the same shall remain undischarged for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 45 consecutive days during which execution shall not be effectively DMS 17185250.10 stayed, or any action shall be legally taken by a stay judgment or settlement creditor to attach or levy upon any assets of enforcement of any Obligor to enforce any such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effectsettlement;
(viil) (i) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of Parent Guarantor and its Subsidiaries in an aggregate amount exceeding (i) $250,000 in any year or (ii) $750,000 for all periods until repayment of all Obligations;
(m) a Change of Control shall have occurred;
(n) a Material Adverse Change shall have occurred;
(i) any security interest under Lien created by any of the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, shall at any time, cease to be in full force time not constitute a valid and effect perfected Lien on the applicable Collateral (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document Documents) in favor of the Secured Parties, free and this Indenture) for any reason clear of all other Liens (other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest Permitted Liens), (ii) except for expiration in accordance with its terms, any of the terms of this Indenture or such Security Document Documents or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision Guarantee of a court any of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture Obligations (including with respect to any limitations), any Note Guarantee is held that contained in any judicial proceeding to be unenforceable or invalid or ceases Section 14) shall for any whatever reason cease to be in full force and effect, or (iii) any Guarantor or of the Security Documents, any Person acting on behalf Guarantee of any such Guarantorof the Obligations (including that contained in Section 14), denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 daysthe enforceability thereof, shall be repudiated or contested by any Obligor; orand
(Ap) a court having jurisdiction over any injunction, whether temporary or permanent, shall be rendered against any Obligor that prevents the IssuerObligors from selling or manufacturing the Product or its commercially available successors, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of their other material and commercially available products in the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or United States for more than sixty (y60) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debtscalendar days.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and be continuing as a result of such failure.
Appears in 1 contract
01Events of Default. (a) Each In case of the happening of any of the following shall be events (each, an “Event of Default”:):
(a) any representation or warranty made or deemed made by the Borrower, Holdings or any Subsidiary Loan Party herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect when so made or deemed made;
(b) default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or in the payment of any Fee, premium (including the Prepayment Premium (if applicable)) or any other amount (other than an amount referred to in clause (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three (3) Business Days;
(d) default shall be made in the due observance or performance by the Borrower or Holdings of any covenant, condition or agreement contained in, (i) Section 5.01(a), 5.05(a), 5.08, 5.12 or 5.14 or in Article VI or (ii) Section 5.04(a), 5.04(b), 5.04(c) or 5.04(d) and such default under this clause (ii) shall not have been remedied or waived within ten (10) days of the occurrence thereof;
(e) default shall be made in the due observance or performance by Holdings, the Borrower or any of the Subsidiary Loan Parties of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (b), (c) and (d) above) and such default shall continue unremedied for a period of 30 days after the earlier of (i) notice thereof from the Administrative Agent to the Borrower and (ii) any Responsible Officer of Holdings or the Borrower obtaining actual knowledge of such default;
(i) default any event or condition occurs that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) Holdings, the Borrower or any of its Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that this clause (f) shall not apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for 30 such Indebtedness;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower, Holdings or any of the Material Subsidiaries, or of a substantial part of the property or assets of the Borrower, Holdings or any Material Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, Holdings or any of the Material Subsidiaries or for a substantial part of the property or assets of the Borrower, Holdings or any of the Material Subsidiaries or (iii) the winding-up or liquidation of the Borrower, Holdings or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower, Holdings or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the payment when due filing of interest any petition described in clause (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, Holdings or any of the Material Subsidiaries or for a substantial part of the property or assets of the Borrower, Holdings or any Material Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable or admit in writing its inability or fail generally to pay its debts as they become due;
(j) the failure by the Borrower, Holdings or any Material Subsidiary to pay one or more final judgments aggregating in excess of $10,000,000 (to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 45 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower, Holdings or any Material Subsidiary to enforce any such judgment;
(k) (i) an ERISA Event shall have occurred, (ii) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any duration feesPlan or Plans, (iii) Holdings, the Borrower or Additional Amountsany Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is being terminated, within the meaning of Title IV of ERISA, or (iv) Holdings, the Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, with respect would reasonably be expected to the Notes;have a Material Adverse Effect; or
(iii) default any Loan Document shall for any reason be asserted in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium (including the Redemption Premium), if any, onwriting by Holdings, the Notes;
(iii) failure by the Issuer Borrower or relevant Guarantor any Subsidiary Loan Party not to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders be a legal, valid and binding obligation of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture party thereto (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt accordance with in clause (iits terms), (ii) or (iii) above), the Notes or the Note Guarantees or (y) in any security interest purported to be created by any Security Document and to extend to assets that constitute a material respect with any portion of the agreements Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Note Document;
Loan Party not to be (v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its express maturity, andthan, in each case, in accordance with its terms), a valid and perfected security interest (perfected as or having the principal amount of priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such Indebtedness loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests of Foreign Subsidiaries or the application thereof, or from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file Uniform Commercial Code continuation statements or take the actions described on Schedule 3.04 and except to the extent that such loss is due covered by a lender’s title insurance policy and has not been paid, together the Administrative Agent shall be reasonably satisfied with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement credit of such judgment insurer, or order, by reason (iii) a material portion of an appeal, waiver or otherwise, shall not have been in effect;
(vii) any security interest under the Guarantees pursuant to the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, by Holdings or the Subsidiary Loan Parties guaranteeing the Obligations shall cease to be in full force and effect (other than as a result of in accordance with the terms thereof), or shall be asserted in writing by Holdings or any action Subsidiary Loan Party not to be in effect or inaction by the Security Agent not to be legal, valid and binding obligations (other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing thereof); provided, that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and be continuing as a result Lien, such security interest and Lien is replaced and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; then, and in every such event (other than an event with respect to Holdings or the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such failureevent, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees, premium (including the Prepayment Premium (if applicable)) and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event with respect to Holdings or the Borrower described in clause (h) or (i) above, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees, premium (including the Prepayment Premium (if applicable)) and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each Loan Party, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Appears in 1 contract
01Events of Default. (a) Each If any of the following shall be events (each, an “Event of Default”) shall occur:
(ia) a default for 30 days in the payment when due of interest (i) any principal of any Advance or (ii) any other amount payable under any Transaction Document by the Borrower, the Servicer or the Transferor, including any duration feesYield, any Unused Fee or any other fee and such failure to pay is not cured within three (3) Business Days after the same becomes due, unless such failure to pay is due to administrative error or Additional Amountsomission by any of the Collateral Agent, if anythe Account Bank or the Collateral Custodian, in which case such failure to pay is not cured within five (5) Business Days after such Person receives written notice or has actual knowledge of such administrative error or omission; or
(b) any failure to pay, on the Facility Maturity Date, the outstanding principal of all Advances Outstanding, and all Yield and all Fees accrued and unpaid thereon together with all other Obligations, including, but not limited to, any Prepayment Premium; or
(c) the failure on any Payment Date to disburse amounts in the Collection Account in accordance with Section 2.04 and the same remains unremedied for three (3) Business Days; provided that, in the case of a failure to disburse resulting solely from an administrative error or omission by the Collateral Agent, such default continues unremedied for more than five (5) Business Days after a Responsible Officer of the Collateral Agent receives written notice or has actual knowledge of such administrative error or omission; or
(d) (i) any of the Borrower, the Transferor or the Servicer shall, (x) with respect to the Notes;
(ii) default in the payment when due (at maturityBorrower, upon redemption or otherwise) of the fail to pay any principal of, or premium or interest on, any Indebtedness (including other than the Redemption Premium)Obligations) for borrowed money to which it is a party in an aggregate principal amount in excess of $1,000,000 when the same becomes due and payable after taking into account the applicable grace period and (y) with respect to the Transferor, fail to pay any principal of, or premium or interest on, any Indebtedness (other than the Obligations) for borrowed money in excess of $25,000,000 when the same becomes due and payable after the applicable grace period; (ii) any other default by any of the Borrower or the Transferor under any agreement, contract, document or instrument relating to any such Indebtedness or any other event shall occur and shall continue after the applicable grace period, if any, on, the Notes;
effect of such default or event is to accelerate the maturity of such Indebtedness; or (iii) failure any such Indebtedness for borrowed money described in clause (i) above is in fact declared to be due and payable or required to be prepaid, redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof; or
(e) except as otherwise provided in this definition of “Event of Default,” a default by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee Borrower or the Holders of at least 30% Transferor in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a of any other covenant or other agreement which of the Borrower or the Transferor in the Transaction Documents (it being understood, without limiting the generality of the foregoing, that the failure to satisfy any Collateral Quality Test is specifically dealt with not, in and of itself, an Event of Default and the existence of a Borrowing Base Deficiency is not, in and of itself, an Event of Default except to the extent provided in clause (k) immediately below) and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i), ) the date on which written notice of such failure requiring the same to be remedied shall have been received by the Borrower or the Transferor and (ii) the date on which the Borrower or the Transferor acquires knowledge thereof (iii) aboveother than with respect to Section 5.03(g), as to which no additional grace periods shall apply); or
(f) the Notes occurrence of a Bankruptcy Event relating to the Borrower, the Transferor or the Note Guarantees Servicer; or
(g) the occurrence of a Servicer Default; or
(i) the rendering of one or more judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of (x) $1,000,000 against the Borrower or (y) in any material respect with any of $25,000,000 against the agreements in any other Note Document;
(v) default under any mortgageTransferor, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by and the Issuer or any of its Restricted Subsidiaries (Borrower or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries)Transferor, other than Indebtedness owed to the Issuer or any of its Restricted Subsidiariesas applicable, whether such Indebtedness or Guarantee now exists, or is created after the Signing Date, if that default:
shall not have either (A) is caused by a failure to pay principal discharged or provided for the discharge of any such Indebtedness prior to the expiration of the grace period provided judgment, decree or order in such Indebtedness on the date of such default; or
accordance with its terms, (B) results in the acceleration perfected a timely appeal of such Indebtedness prior judgment, decree or order and caused the execution of same to its express maturitybe stayed during the pendency of the appeal, andor (C) provided to the Administrative Agent evidence satisfactory to it that an insurance provider which is rated at least “A-” by A.M. Best Company has agreed to satisfy such judgment, decree or order in full (or in an amount necessary to reduce the amount not covered by such insurance provider below the amount set forth in this clause above) (excluding any applicable deductibles), in each case, within sixty (60) days thereof; or (ii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the principal amount Borrower or the Transferor to enforce any such judgment; or
(i) the failure of the Borrower to qualify as a bankruptcy remote entity based upon customary criteria or the failure to satisfy Section 5.01(d) or Section 5.03(n); or
(1) any Transaction Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Transferor, or the Servicer, or
(2) the Borrower, the Transferor or the Servicer shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any such Indebtedness that is due Transaction Document or any lien or security interest thereunder, or
(3) any security interest in any Collateral securing any Obligation shall, in whole or in part, cease to be a first priority perfected security interest (subject to Permitted Liens) except as otherwise expressly permitted to be released in accordance with the applicable Transaction Document; or
(k) a Borrowing Base Deficiency exists and has not been paidremedied in accordance with Section 2.06 within the time period set forth therein; provided that, together during the period of time that such event remains unremedied, any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.04(c); or
(l) the Borrower shall become required to register as an “investment company” in accordance with the principal amount of any other such Indebtedness that is due and has not been paid 1940 Act or the maturity of which has been so accelerated, equals or exceeds $125.0 million arrangements contemplated by the Transaction Documents shall become required to register as an “investment company” in aggregate;accordance with the 1940 Act; or
(vim) failure by the Issuer Internal Revenue Service shall file notice of a Lien (other than a Permitted Lien) pursuant to Section 6323 of the Code with regard to any assets of the Borrower or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments the Transferor and such Lien shall not have been discharged released within five (5) Business Days, or waived the PBGC shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower or the Transferor and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, Lien shall not have been in effect;
released within five (vii5) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease to be in full force and effect (other than as a result of any action or inaction by the Security Agent and other than in accordance with the terms of the relevant Security Document and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viii) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 daysBusiness Days; or
(An) a court having jurisdiction over (i) the Issuer, a Guarantor occurrence of an ERISA Event or a Significant Subsidiary enters (x) Servicer ERISA Event that would reasonably be expected to have a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law Material Adverse Effect or (yii) the Borrower becomes a decree Benefit Plan Investor; or
(o) any Change of Control shall occur; or
(p) any representation, warranty or order adjudging certification made by the Issuer, Borrower or the Transferor in any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect in any material respect of the Issuerwhen made, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect which continues to be unremedied for a period of 60 consecutive thirty (30) days or (Bif such failure can be remedied) after the Issuer, any Guarantor or any earlier to occur of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law the date on which written notice of such incorrectness requiring the same to be remedied shall have been received by the Borrower or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, Transferor and (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to date on which a Responsible Officer of the TrusteeBorrower or the Transferor acquires knowledge thereof; provided that no breach shall be deemed to occur hereunder in respect of any representation or warranty relating to the “eligibility” of any Loan Asset if either (x) the Borrower complies with its obligations in Section 2.07(b) with respect to such Loan Asset or (y) the exclusion of such Loan Asset from the Borrowing Base would not result in a Borrowing Base Deficiency; or
(q) except as expressly permitted under the Transaction Documents, the Trustee Borrower ceases to have a valid ownership interest (or a perfected, first priority precautionary back-up security interest (subject to Permitted Liens) granted by the Transferor (which the Borrower shall deliver have collaterally assigned to each Holder notice the Collateral Agent)) in all of the Default Collateral; or
(r) [reserved]; or
(s) (i) failure of the Borrower to maintain at least one Independent Manager, (ii) the removal of any Independent Manager of the Borrower without “cause” (as such term is defined in the organizational document of the Borrower) or Event without giving prior written notice to the Administrative Agent or (iii) an Independent Manager of Default within the earlier Borrower which is not provided by a service listed on a list approved by the Administrative Agent of 90 days after pre-approved nationally recognized services is appointed without the consent of the Administrative Agent; provided that, the Borrower shall have five (5) Business Days following such failure or removal to replace any Independent Manager; or
(t) except as expressly permitted under the Transaction Documents, the Borrower, the Transferor or the Servicer makes or attempts to make any assignment of its occurrence rights or 30 days after it received actual knowledge thereof obligations under this Agreement or any other Transaction Document (in the case of the Servicer, other than an assignment to the BDC Adviser or a Qualified BDC Affiliate) without first obtaining the specific written consent of each of the Lenders and the Administrative Agent, which consent may be withheld by registered any Lender or certified mail the Administrative Agent in its sole and absolute discretion; then the Administrative Agent or facsimile transmission the Required Lenders, may, by notice to the Borrower (with a copy to the Collateral Agent), declare the “Facility Maturity Date” to have occurred; provided that, in the case of an Officer’s Certificate specifying such eventany event described in Section 7.01(f) above, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee “Facility Maturity Date” shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge occurred automatically upon the occurrence of such Default event. Upon any such declaration or a Responsible Officer receives a automatic occurrence, (i) the Revolving Period shall end and the Borrower shall cease purchasing Loan Assets from the Transferor under the Sale and Contribution Agreement or from any other third party and shall cease originating Loan Assets, (ii) the Administrative Agent or the Required Lenders may declare the Advances to be immediately due and payable in full (without presentment, demand, protest or notice of default any kind, all of which are hereby waived by the Borrower) and any other Obligations to be immediately due and payable, and (iii) all proceeds and distributions in respect of the Collateral shall be distributed by the Collateral Agent (at its corporate trust officer the direction of the Administrative Agent) as described in Section 2.04(c) (provided that the Borrower shall in any event remain liable to pay such Advances Outstanding and all such notice specifies amounts and Obligations immediately in accordance with Section 2.04(e)). In addition, upon any such declaration or upon any such automatic occurrence, the Default Collateral Agent, on behalf of the Secured Parties and at the direction of the Administrative Agent, shall have, in addition to all other rights and remedies under this Agreement or Event otherwise, all other rights and remedies provided under the UCC of Default and the applicable section(s) jurisdiction and other Applicable Law, which rights shall be cumulative. Without limiting any obligation of this Indenture and/or Security Documents subject to such Default the Servicer hereunder, the Borrower confirms and agrees that the Collateral Agent, on behalf of the Secured Parties and at the direction of the Administrative Agent (or any designee thereof, including, the Servicer), following an Event of Default. The Issuer shall also notify , shall, at its option, have the Trustee within 30 days sole right to enforce the Borrower’s rights and remedies under each Assigned Document, but without any obligation on the part of the occurrence Collateral Agent, the Collateral Custodian, the Account Bank, the Administrative Agent, the Lenders or any of their respective Affiliates to perform any Default stating what action, if any, they are taking with respect to that Default.
(c) of the obligations of the Borrower under any such Assigned Document. If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred and occurred, Applicable Margin shall be continuing increased pursuant to the definition thereof, effective as a result of the date of the occurrence of such failureEvent of Default, and shall apply on each day after the occurrence and during the continuance of such Event of Default.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Antares Private Credit Fund)
01Events of Default. (a) Each An Event of Default shall exist upon the occurrence of any of the following shall be specified events (each an “Event of Default”:):
(a) Any Borrower or any other Credit Party fails to pay (i) when and as required to be paid herein and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or other amount payable hereunder or under any other Credit Document; or
(b) Any representation or warranty made or deemed made herein or in any of the other Credit Documents or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect, false or misleading in any material respect on or as of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Section 7.07(a) or Article VIII hereof; or (ii) any Credit Party shall fail to comply with any other covenant, contained in this Agreement or the other Credit Documents or any other agreement, document or instrument among such Credit Party, the Administrative Agents and the Lenders or executed by such Credit Party in favor of the Administrative Agents or the Lenders (other than as described in Sections 9.01(a) or (c)(i) above), and in the event such breach or failure to comply is capable of cure, is not cured within thirty (30) days of the earlier of (x) a Responsible Officer of any Credit Party having actual knowledge of such breach or failure, and (y) the date on which notice of such breach or failure is delivered by an Administrative Agent or any Lender to the Parent Borrower; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default for 30 days in any payment of principal of or interest on any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the payment when due aggregate for the Credit Parties and any of interest (including any duration fees) or Additional Amountstheir Subsidiaries beyond the period of grace, if any, with respect to provided in the Notes;
instrument or agreement under which such Indebtedness was created; or (ii) default in the payment when observance or performance of any other agreement or condition relating to any Indebtedness (other than the Obligations) in a principal amount outstanding of at least $50,000,000 in the aggregate for the Credit Parties and their Subsidiaries or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity; or
(at maturityi) Any Credit Party or any of its Subsidiaries shall commence any case, upon redemption proceeding or otherwiseother action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, monitor, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Credit Party or any Subsidiary shall make a general assignment for the principal benefit of its creditors; or (ii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Credit Party or any Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Credit Party or any Subsidiary shall take any action in furtherance of, or premium (including the Redemption Premium)indicating its consent to, if anyapproval of, onor acquiescence in, the Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with Sections 4.11 or 5.01;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Issuer by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class to comply (x) with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with acts set forth in clause (i), (ii) ), or (iii) above), the Notes ; or the Note Guarantees or (y) in any material respect with any of the agreements in any other Note Document;
(v) default under any mortgageCredit Party or any Subsidiary shall generally not, indenture or instrument under which there may shall be issued unable to, or by which there may shall admit in writing its inability to, pay its debts as they become due; or
(f) (i) One or more judgments or decrees shall be secured or evidenced entered against any Indebtedness for money borrowed by the Issuer Credit Party or any of its Restricted Subsidiaries involving in the aggregate a liability (to the extent not paid when due or the payment covered by insurance) of which is guaranteed by the Issuer $50,000,000 or more, or (ii) any one or more non-monetary final judgments shall be entered into against any Credit Party or any of its Restricted Subsidiaries), other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries, whether such Indebtedness or Guarantee now existsSubsidiaries that have, or is created after the Signing Datecould reasonably be expected to have, if that default:
(A) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(B) results individually or in the acceleration of such Indebtedness prior to its express maturityaggregate, a Material Adverse Effect and, in each either case, the principal amount of any and all such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid judgments or the maturity of which has been so accelerated, equals or exceeds $125.0 million in aggregate;
(vi) failure by the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $125.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments decrees shall not have been discharged paid and satisfied, vacated, discharged, stayed or waived and there bonded pending appeal within 10 days from the entry thereof; or
(i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Multiemployer Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets of the Parent Borrower or any ERISA Affiliate, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have been a period trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of 60 consecutive days during which proceedings or appointment of a stay trustee is, in the reasonable opinion of enforcement the Required Lenders, likely to result in the termination of such judgment Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any Credit Party, any of its Subsidiaries or orderany ERISA Affiliate shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency of, any Multiemployer Plan or (vi) any other similar event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
(h) Either (i) after the Closing Date, any Person or two or more Persons acting in concert acquires “beneficial ownership,” directly or indirectly, of, or acquires by reason of an appeal, waiver contract or otherwise, or shall not have been entered into a contract or arrangement that, upon consummation, will result in effect;its or their acquisition of, control over, Voting Stock of the Parent Borrower (or other securities convertible into such Voting Stock) representing 25% or more of the combined voting power of all 95 Voting Stock of the Parent Borrower, or (ii) during any period of up to 24 consecutive months, commencing after the Closing Date, individuals who at the beginning of such 24 month period were directors of the Parent Borrower (together with any new director whose election by the Parent Borrower’s Board of Directors or whose nomination for election by the Parent Xxxxxxxx’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason, other than retirement, to constitute a majority of the directors of the Parent Xxxxxxxx then in office. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and Exchange Commission under the Securities Act of 1934; or
(viii) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $25.0 million shall, at any time, cease Any Credit Document shall fail to be in full force and effect or to give the Administrative Agents and/or the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby (other than except as a result of any action such documents may be terminated or inaction by the Security Agent no longer in force and other than effect in accordance with the terms of the relevant Security Document and this Indenture) for any reason thereof, other than the satisfaction in full of all obligations under this Indenture those indemnities and provisions which by their terms shall survive); or the release or amendment of any such security interest in accordance with the terms of this Indenture or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Issuer or any Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten (10) days;
(viiij) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(A) a court having jurisdiction over the Issuer, a Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary, or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Issuer, any Guarantor or any of the Issuer’s Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a Custodian of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Issuer, any such Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) admits in writing that it generally is not paying its debts as they become due or is found by a court of competent jurisdiction not to be so paying such debts.
(b) If a Default or an Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee There shall deliver to each Holder notice of the Default or Event of Default within the earlier of 90 days after its occurrence or 30 days after it received actual knowledge thereof by registered or certified mail or facsimile transmission of an Officer’s Certificate specifying such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer has actual knowledge of such Default or a Responsible Officer receives a notice of default at its corporate trust officer and such notice specifies the Default or Event of Default and the applicable section(s) of this Indenture and/or Security Documents subject to such Default or Event of Default. The Issuer shall also notify the Trustee within 30 days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
(c) If any report or conference call required by Section 4.19 is provided before the 90th day after the deadlines indicated for such report or conference call, the provision of such report or conference call shall cure a Default caused by the failure to provide such report or conference call prior to the deadlines indicated, so long as no Event of Default shall have occurred occur and be continuing an “event of default” (or any comparable term) under and as a result of such failure.defined in the indentures or other documents evidencing the Senior Notes.
Appears in 1 contract
Samples: Cdor Transition Amendment (Graybar Electric Co Inc)
