01Events of Default. In case of the happening of any of the following events (each, an “Event of Default”): (a) any representation or warranty made or deemed made by the Borrower or any Guarantor 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 and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower; (b) default shall be made in the payment of any principal of any Loan or any reimbursement amount under any Letter of Credit 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 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 five (5) Business Days; (d) default shall be made in the due observance or performance by the Borrower of any covenant, condition or agreement contained in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VI; (e) default shall be made in the due observance or performance by the Borrower or any of the Guarantors 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 thirty (30) days after notice thereof from the Administrative Agent to the Borrower; (i) 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 such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur; (g) there shall have occurred a Change of 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 or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; (i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower 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 fail generally to pay its debts as they become due; (j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment; (i) an ERISA Event occurs that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected to have a Material Adverse Effect; (i) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or (i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, 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, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default.
Appears in 1 contract
01Events of Default. In case of the happening of any One or more of the following events (each, shall constitute an “Event of Default”)::
(a) any representation or warranty made or deemed made by the The Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under obligation in respect of any Letter of Credit 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 thereof, by acceleration thereof or otherwise;.
(cb) default The Borrower shall be made in the payment of fail to pay any interest on any Loan or in the payment of any fee or any other amount (other than an amount referred to in clause (bSection 10.01(a)) above) due payable under any Loan Document, when and as the same shall become due and payable, and such default failure shall continue unremedied for a period of five three (53) Business Days;.
(c) Any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with any Loan Document or any amendment or modification of any Loan Document or waiver under such Loan Document, 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, that (i) was subject to a materiality qualifier (by reference to Material Adverse Effect or otherwise) shall prove to have been incorrect when made or deemed made or (ii) was not subject to a materiality qualifier shall prove to have been incorrect in any material respect when made or deemed made.
(d) default shall be made in the due observance or performance by the Borrower of any covenant, condition or agreement contained in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the The Borrower or any of the Guarantors of Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (bSection 8.02(a), Section 8.03 (c) and (d) above) and such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(i) 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 such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property Borrower’s or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereofSubsidiary’s existence only), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of IndebtednessSection 8.16, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of 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 or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower 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 fail generally to pay its debts as they become due;
(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;
(i) an ERISA Event occurs that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected to have a Material Adverse Effect;
(i) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties8.21(a) or the application thereof, in ARTICLE IX or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or
(i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, 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, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. ARTICLE
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Battalion Oil Corp)
01Events of Default. In case of Upon the happening occurrence and during the continuance of any of the following events (each, an “Event of Default”):
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor 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 and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of any principal of any Loan or any reimbursement amount under any Letter of Credit when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment (whether optional or mandatory) thereof or by acceleration thereof or otherwise;
(cb) default shall be made in the payment of any interest on any Loan Credit Extension or in the payment of any Fee or any other amount (other than an amount referred to in clause (ba) above) due under any Loan Document, when and as the same shall become due and payable, whether at the due date thereof (including an 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 five three (53) Business Days;
(c) any representation or warranty made or deemed made by any Loan Party in (or in connection with) any Loan Document, or in any certificate, financial statement or other instrument furnished in connection with or required to be given or delivered by any Loan Party pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or so furnished;
(d) default shall be made in the due observance or performance by the Borrower any Company of any covenant, condition or agreement contained inin Section 5.02(a), Section 5.01(a5.03(a) (solely with respect as it relates to the Borrowera Loan Party), 5.05(a) or 5.08 Section 5.04, Section 5.08, Section 5.10, Section 5.13, Section 5.14, Section 5.16, Section 5.18 or in Article VI;
(e) default shall be made in the due observance or performance by the Borrower or any of the Guarantors Company of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses clause (ba), (cb) and 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 thirty five Business Days, and (30ii) 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 event principal, premium 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 occurs that (A) results or agreement contained in any Material agreement or instrument evidencing or governing any such Indebtedness becoming due prior if the effect of any failure referred to its scheduled maturity in this clause (ii) is to cause, or (B) enables or permits (with all applicable grace periods having expired) to permit the holder or holders of any Material such Indebtedness or any a trustee or agent other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause any cause, such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, due prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, stated maturity or any such event of or condition having been cured promptly; or (ii) become subject to a mandatory offer to purchase by the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereofobligor; provided, that subclause (i) it shall not constitute an Event of Default pursuant to this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result unless the aggregate amount of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that all such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person referred to in clauses (i) and (ii) equals or (7) the redemption of exceeds $25,000,000 at any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occurone time;
(g) there shall have occurred a Change of Control;
(h) an involuntary proceeding Insolvency 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 or any Material Subsidiary, Company or of a substantial part of the property or assets of the Borrower or any Material SubsidiaryCompany, under the Bankruptcy Code Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Lawsimilar Legal Requirement, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examinerliquidator, liquidator rehabilitator or similar official for the Borrower or any Material Subsidiary or Company for a substantial part of the property or assets of the Borrower or any Material Subsidiary Company; or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement up or other relief liquidation of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder)Company; and such proceeding or petition shall continue undismissed for sixty (60) 60 days or an order or decree Order approving or ordering any of the foregoing shall be entered;
(ih) the Borrower or any Material Subsidiary 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 any other Debtor Relief Law, similar Legal Requirement; (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding Insolvency Proceeding or the filing of any petition described in clause (hg) above, ; (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examinerliquidator, liquidator rehabilitator or similar official for the Borrower or any Material Subsidiary Company or for a substantial part of the property or assets of the Borrower or any Material Subsidiary, 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 or creditors; (vi) become unable 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) take any action for the purpose of effecting any of the foregoing;
(ji) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA Orders for the most recently ended Test Period as payment of money in an aggregate amount of $25,000,000 or more that are not covered by insurance from an unaffiliated insurance company with an A.M. Best financial strength rating of at least A- (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 timeamounts) shall be rendered against any Company or any combination thereof and the same shall remain undischarged, which judgments are not discharged unvacated or effectively waived or stayed unbonded for a period of sixty (60) 30 consecutive daysdays during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary Company to enforce any such judgmentOrder;
(ij) an one or more ERISA Event occurs Events shall have occurred that, when taken together with all other such ERISA Events that has resulted have occurred, or would reasonably be expected any event similar to result in liability the foregoing shall have occurred or exists with respect to a Non-U.S. Plan, including, but not limited to, the issue of a Financial Support Direction and/or a Contribution Notice or the winding-up of the Borrower or Non-U.S. Plan, in any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount such case that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected to have a Material Adverse Effect;
(ik) any security interest and Lien purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect effect, or 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 such Security Document) Lien on and security interest in, all of the Collateral (other than an immaterial portion) thereunder) in accordance with favor of the terms thereof)Collateral Agent, or shall be asserted in writing by the Borrower or on behalf of any Guarantor Company not to be be, a valid, enforceable, perfected, First Priority (except as otherwise expressly provided in effect this Agreement or not to be legal, valid such Security Document) Lien on and binding obligations (other than security interest in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or
(i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (himmaterial portion) or (i) above), and at any time thereafter during the continuance of such event, 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, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. covered thereby;
Appears in 1 contract
01Events of Default. In case of the happening of any Each of the following events (each, shall constitute an “Event of Default”):Default under this Agreement:
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto The Borrowers shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under any Letter of Credit 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;
(cb) default The Borrowers shall be made in the payment of fail to pay any interest on any Loan or in the payment of any fee or any other amount (other than an amount referred to in clause (ba) aboveof this Section 7.01) due payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such default failure shall continue unremedied for a period of five three (53) Business Days;
(dc) default shall be Any representation or warranty made in the due observance or performance deemed made by the Borrower or on behalf of any covenant, condition Loan Party or agreement contained any Subsidiary in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VIconnection with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made;
(ed) default Any Loan Party shall be made in fail to perform or observe any agreement, covenant or obligation under the due observance or performance by the Borrower or any of the Guarantors of any covenant, condition or agreement contained in any Loan Document following provisions:
(other than those specified in clauses (b), (ci) Sections 5.01(c) through 5.01(f) and (dSection 5.01(h) abovethrough Section 5.01(l) of this Agreement and such default failure shall continue unremedied for a period of thirty (30) days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent Lender;
(ii) Section 5.01(b) (other than Section 5.01(b)(vii)(A)) of this Agreement and such failure shall continue unremedied for a period of two (2) Business Days after the occurrence thereof; or
(iii) Section 5.01(a)(i), Section 5.01(b)(vii)(A), Section 5.01(g), Section 5.02 or Section 5.03 of this Agreement.
(e) Any Loan Party fails to comply with or perform any covenant or other provision of this Agreement or any other Loan Document after any applicable notice and cure periods (which failure does not constitute an Event of Default under any of the Borrowerpreceding provisions of this Section 7.01) and such failure shall continue unremedied for a period of 15 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender;
(f) At any time, for any reason, (A) any Loan Document as a whole that materially affects the ability of the Lender to enforce the Obligations or enforce its rights against the Collateral ceases to be in full force and effect or any Loan Party seeks to repudiate its obligations thereunder and the Liens intended to be created thereby are, or any Loan Party seeks to render such Liens, invalid and unperfected, or (B) Liens on Collateral in favor of the Lender contemplated by the Loan Documents shall, at any time, for any reason, be invalidated or otherwise cease to be in full force and effect, or such Liens shall not have the perfection or priority contemplated by this Agreement or the Loan Documents;
(g) Default by any Loan Party in the payment when due, whether by acceleration or otherwise, of (i) any Subordinated Debt, or (ii) any other Debt for borrowed money having a principal amount of $10,000 or more, or default in the performance or observance of any obligation or condition with respect to any such Subordinated Debt or other Debt, in each case if the effect of such default is to accelerate the maturity of such Subordinated Debt or other Debt or the holder or holders thereof, or any trustee or agent for such holders, cause such Subordinated Debt or other Debt to become due and payable prior to its scheduled maturity;
(h) [Reserved];
(i) Any Loan Party admitting in writing its inability to pay its debts as they mature or an administrative or judicial order of dissolution or determination of insolvency being entered against 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 Loan Party; or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become dueLoan Party applying for, consenting to, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, acquiescing in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of 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 or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receivertrustee or receiver for such Loan Party or any property thereof, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official any Loan Party making a general assignment for the Borrower benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee or receiver being appointed for any Material Subsidiary Loan Party or for a substantial part of the property or assets of the Borrower any Loan Party and not being discharged within sixty (60) days; or any Material Subsidiary or (iii) the winding-up, liquidationbankruptcy, reorganization, dissolutiondebt arrangement, compromise, arrangement or other relief of the Borrower proceeding under any bankruptcy or insolvency law, or any Material Subsidiary (except dissolution or liquidation proceeding being instituted by or against any Loan Party, and, if involuntary, being consented to or acquiesced in a transaction permitted hereunder); and such proceeding by any Loan Party or petition shall continue undismissed remaining for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower 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 fail generally to pay its debts as they become dueundismissed;
(j) There shall be a Change of Control without the failure by prior written consent of the Borrower or any Material Subsidiary to pay one Lender;
(k) [Reserved];
(l) One or more final judgments aggregating for the payment of money in an aggregate amount in excess of $10,000 (in each case to the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for extent not covered by third-party insurance as to which the most recently ended Test Period as insurer has been notified of such timejudgment and does not deny coverage) shall be rendered against any Loan Party, which judgments are not discharged any Subsidiary or effectively waived or stayed any combination thereof and the same shall remain undischarged for a period of sixty thirty (6030) consecutive daysdays after becoming due during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets or properties of the Borrower any Loan Party or any Material Subsidiary to enforce any such judgment;
(i) an ERISA Event occurs that has resulted judgment or would reasonably be expected to result in liability of the Borrower any Loan Party or any Subsidiary shall fail within thirty (30) days after becoming due to discharge one or any ERISA Affiliate under Title IV of ERISA more non-monetary judgments or orders which, individually or in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary or any ERISA Affiliate fails to pay when dueaggregate, 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 would could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;
(im) If the plan administrator of any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion Plan applies under Section 412(d) of the Collateral Code for a waiver of the minimum funding standards of Section 412(a) of the Code and the Lender believes the substantial business hardship upon which the application for the waiver is based could reasonably be expected to cause or result in a Material Adverse Effect; or
(n) The Guaranty or any other Guarantee of the Obligations shall cease fail to beremain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Guaranty or any Guarantee of the Obligations, or any Guarantor shall fail to comply with any of the terms or provisions of the Guaranty or any other Guarantee of the Obligations to which it is a party, or any Guarantor shall deny that it has any further liability under the Guaranty or any Guarantee of the Obligations to which it is a party, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject give notice to such limitations and restrictions as are set forth herein and therein) in the securitieseffect, assets or properties covered therebyincluding, except but not limited to the extent that any such loss notice of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually termination delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing terms of any Guarantee of the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or
(i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, 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, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. .
Appears in 1 contract
01Events of Default. In case of the happening of any of the The following events (each, an shall be “Event Events of Default”)::
(a) A Borrower or Guarantor shall fail to (a) make any representation payment or deposit to be made by it under Article II, Section 3.01 or Section 8.02(d) when due (whether of principal or interest at stated maturity, upon acceleration, or at mandatory prepayments due to Borrowing Base Deficiencies or otherwise) or (b) make any other payment or deposit to be made by it hereunder when due and, solely with respect to this clause (b), such failure (other than with respect to payment of principal) shall continue unremedied for a period of two (2) Business Days;
(b) A Borrower Party shall fail to comply with the requirements of Sections 7.01(n), 7.01(i), 7.01(g), 7.01(ee) or 7.02(f) and such default shall continue unremedied for a period of one (1) Business Day; or a Borrower Party shall otherwise fail to observe or perform any other agreement contained in this Agreement or any other Facility Document and such failure to observe or perform shall continue unremedied for a period of five (5) Business Days following a Borrower Party obtaining knowledge thereof;
(c) Any representation, warranty or certification made or deemed made by the Borrower or any Guarantor herein or in any other Loan Facility Document by a Borrower Party or any certificate or document delivered furnished to Lender pursuant hereto or thereto to the provisions thereof, shall prove to have been false or misleading in any material respect when so as of the time made or deemed furnished (other than the representations and warranties set forth in Section 6.02 which shall be considered solely for the purpose of determining the MSR Value of the Eligible Servicing Rights; unless (i) Borrower Party shall have made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such representations and warranties with knowledge that they were materially false or misleading representation at the time made or warranty remains incorrect for (ii) any such representations and warranties have been determined by Lender in its reasonable discretion to be materially false or misleading on a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrowerregular basis);
(b1) default The failure of PMC to be an approved servicer under the guidelines of an Agency with respect to which any Eligible Servicing Rights pledged under this Agreement relate, (2) PMC fails to service or subservice, as applicable, in accordance with the Agency Guides and the Lender determines in its good faith discretion that such failure may have a Material Adverse Effect, (3) PMC is terminated as servicer or subservicer, as applicable, with respect to any Eligible Servicing Rights by Xxxxxxx Mac (except if the provisions of Section 7.01(g)(a)-(c) are met), (4) PMC shall at any time be terminated, revoked or suspended as servicer or subservicer, as applicable, with respect to any whole loan servicing or subservicing rights that make up a material portion of PMC’s servicing portfolio or subservicing portfolio, (5) PMC shall cease to be approved by or its approval shall be made in the payment revoked, suspended, rescinded, halted, eliminated, withdrawn, annulled, repealed, voided or terminated by an Agency as an approved seller/servicer or lender, (6) all or a portion of a Borrower Party’s servicing or subservicing portfolio consisting of Agency loans is seized, (7) any Agency shall at any time cease to accept delivery of any principal of any Loan loan or any reimbursement amount loans from PMC under any Letter program or notifies PMC that the Agency shall cease accepting loan deliveries from such Borrower, (8) receipt by a Borrower Party of Credit when a notice from any Agency indicating material breach, default or material non-compliance by such Borrower Party which the Lender reasonably determines may entitle such Agency to terminate such Borrower Party, as applicable, which notice has not been rescinded or nullified within three (3) Business Days of its receipt by such Borrower Party or such lesser time as Lender believes is necessary to protect its interest and provides the Borrowers with written notice thereof, as the same shall become due case may be, and payable(9) the Subservicing Agreement is amended without the prior written consent of Lender and, whether at notwithstanding the due date thereof or at provisions of Section 7.02(l), the Lender determines in its good faith discretion that such amendment may have a date fixed for prepayment thereof or by acceleration thereof or otherwiseMaterial Adverse Effect;
(ce) Any “event of default” which constitutes a payment default shall have occurred and shall be made in continuing beyond the payment expiration of any interest applicable grace period under the terms of any repurchase agreement, loan and security agreement or similar credit facility or agreement for borrowed funds entered into by such Borrower or any of its Affiliates on the one hand and any Loan third party (including an Affiliate of such Borrower but excluding the Lender or any Affiliate of Lender), which relates to the Indebtedness of such Borrower or any of its Affiliates in an amount individually or in the payment aggregate greater than $10,000,000 which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by such third party;
(f) The Lender does not, or ceases to, have a first priority perfected security interest in the Collateral or any other amount (material part thereof, subject only to the interests of Xxxxxxx Mac pursuant to the Xxxxxxx Mac Servicing Contract and the Xxxxxxx Mac Acknowledgment Agreement, other than an amount referred to in clause (b) above) due under any Loan Document, when and as a result of a release of such security interest by the same shall become due and payable, Lender and such default shall continue continues unremedied for a period of five one (51) Business DaysDay after the earlier of (i) a Responsible Officer of a Borrower or the Guarantor having actual knowledge thereof and (ii) written notice of such default from the Lender;
(dg) default shall be made in A Change of Control of a Borrower or the due observance or performance by the Borrower of any covenant, condition or agreement contained in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VIGuarantor occurs;
(eA) default shall PMC ceases to be made in the due observance or performance by the Borrower or any (1) a HUD approved mortgagee pursuant to Section 203 of the Guarantors National Housing Act or (2) a Xxxxxxx Mac approved seller/servicer or HUD, Xxxxxxx Mac or Xxxxxxx Mac, as applicable, suspends, rescinds, halts, eliminates, withdraws, annuls, repeals, voids or terminates the status of any covenantPMC as either (1) a HUD approved mortgagee pursuant to Section 203 of the National Housing Act or (2) a Xxxxxxx Mac or Xxxxxxx Mac approved servicer or (B) PMC receives notice that HUD, condition Xxxxxxx Mac or agreement contained Xxxxxxx Mac may take such action set forth in any Loan Document clause (other than those specified in clauses (bA), (c) and (d) above) and such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(i) [Reserved];
(j) Guarantor shall fail at any event time to maintain its status as a REIT 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 such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay satisfy all of the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereofconditions set forth in Section 856(c)(2), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of Code and any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occurTreasury Regulations promulgated thereunder;
(gk) there PMC or Guarantor shall have occurred a Change of Controlfail to comply with the financial covenants set forth in Section 7.01(w) hereto;
(hl) an involuntary The failure of PMC to maintain any Agency’s net worth requirements;
(m) Any judgment or order for the payment of money in excess of $5,000,000 shall be rendered against a Borrower or any of its Affiliates, by a court, administrative tribunal or other body having jurisdiction over them and the same shall not be satisfied or discharged (or provisions shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof or, if a stay of execution is procured, sixty (60) days from the date such stay is lifted;
(1) A Borrower or any of its Affiliates files a voluntary petition in bankruptcy, seeks relief under any provision of any Insolvency Law or consents to the filing of any petition against it under any such law; (2) a proceeding shall be commenced or an involuntary petition shall be filed have been instituted by any Affiliate of a Borrower in a court of competent having jurisdiction in the premises seeking (i) a decree or order for relief in respect of the such Borrower or such Affiliate in an involuntary case under any Material Subsidiaryapplicable Insolvency Law, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or other similar official of such Borrower or such Affiliate, or for any substantial part of its Property, or for the winding-up or liquidation of its affairs, (3) a proceeding shall have been instituted by any Person (other than an Affiliate of a Borrower) in a court having jurisdiction in the premises seeking a decree or order for relief in respect of a Borrower or any Material Subsidiary of its Affiliates in an involuntary case under any applicable Insolvency Law, or for a substantial part of the property or assets of the Borrower or any Material Subsidiary or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Borrower or such Affiliate, or for any substantial part of its Property, or for the winding-up or liquidation of its affairs and such Borrower or such Affiliate shall have failed to obtain a relief (including, without limitation, a dismissal) or a stay of such involuntary proceeding within sixty (60) days, (4) the admission in writing by a Borrower or any of its Affiliates of its inability to pay its debts as they become due, (5) a Borrower or any of its Affiliates consents to the appointment of or taking possession by a custodian, receiver, conservator, examinertrustee, liquidator liquidator, sequestrator or similar official, of all or any part of its Property or any custodian, receiver, conservator, trustee, liquidator, sequestrator or similar official for takes possession of all or any part of the Property of such Borrower or any Material Subsidiary or for of its Affiliates; (6) a substantial part of the property or assets of the Borrower or any Material Subsidiary, (iv) file of its Affiliates makes 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 any of its creditors; or (vi7) become unable a Borrower or fail any of its Affiliates generally fails to pay its debts as they become due;
(jo) the failure by the Borrower Any Governmental Authority or any Material Subsidiary Person, agency or entity acting or purporting to pay one act under Governmental Authority (including any Agency) shall have taken any action to condemn, seize or more final judgments aggregating in excess appropriate, or to assume custody or control of, all or any substantial part of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties Property of the Borrower or any Material Subsidiary of its Affiliates, or shall have taken any action to enforce any such judgment;
(i) an ERISA Event occurs that has resulted or would reasonably be expected to result in liability displace the management of the Borrower or any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary of its Affiliates or to curtail the Borrower’s, or any ERISA Affiliate fails to pay when due, after of its Affiliates’ authority in the expiration conduct 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 would reasonably be expected to have a Material Adverse Effectbusiness;
(ip) any security interest purported The Guarantor repudiates, revokes or attempts to be created by any Security Document and to extend to assets that constitute a material portion revoke in writing the guaranty of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are Guarantor set forth herein and therein) in the securitiesSection 11.13 of this Agreement, assets in whole or properties covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacementpart; or
(iq) any material provision the occurrence of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, 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, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. Subservicer Termination Event.
Appears in 1 contract
Samples: Loan and Security Agreement
01Events of Default. In case of the happening of any Each of the following events (each, or occurrences shall constitute an “Event of Default”)::
(ai) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under any Letter of Credit the Advances 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;
(cii) default Borrower shall be made in the payment of fail to pay any interest on any Loan or in the payment of any other amount Advances within five (other than an amount referred to in clause (b5) above) due under any Loan Document, when and as Business Days after the same shall become due and payable, and such default or (iii) Borrower or Holdings shall continue unremedied for a period of fail to make any other payment under any Loan Document to which it is party within five (5) Business Days;Days after the same shall become due and payable; or
(b) any certification, representation or warranty made by Borrower or Holdings (or any of its officers) under or in connection with any Loan Document to which it is a party (including in any certificate delivered pursuant to Article VI or Section 6.03) shall prove to have been incorrect in any material respect when made; provided that, if (i) Borrower or Holdings was not aware that such certification, representation or warranty was false or incorrect at the time such certification, representation or warranty was made, (ii) the fact, event or circumstance resulting in such false or incorrect certification, representation or warranty is capable of being cured, corrected or otherwise remedied, and (iii) such fact, event or circumstance resulting in such false or incorrect certification, representation or warranty shall have been cured, corrected or otherwise remedied AMERICAS 120651159 125 within 30 days from the date a Responsible Officer of Borrower or Holdings obtains knowledge thereof, such false or incorrect certification, representation or warranty shall not constitute a Default or an Event of Default for purposes of the Loan Documents; or
(c) Borrower or Holdings shall fail to perform or observe any term, covenant or agreement contained in Section 3.08, Section 6.01(d), Section 6.01(e), Section 6.02, Section 6.03(a), or Section 6.04 (subject to Borrower’s rights under clause (b) thereof); provided that, with respect to any such failure to perform or observe any term, covenant or agreement contained in Section 6.02(p)(iii) that would also result in an Event of Default described in Section 7.01(o), then Section 7.01(o) shall apply with respect to event or circumstance to the extent addressed therein instead of this Section 7.01(c); or
(d) default Borrower or Holdings shall be made in the due observance fail to perform or performance by the Borrower of observe any covenantterm, condition covenant or agreement contained in, in Section 5.01(a) (solely with respect to the Borrower6.03(b), 5.05(a(c), (d), (e), or (g), or Section 6.05 and such failure shall remain unremedied for 15 days after the earlier of the date on which (x) any Responsible Officer of a Borrower or 5.08 Holdings becomes aware of such failure or in Article VI;(y) written notice thereof shall have been given to Borrower or Holdings by the Administrative Agent or any Lender; or
(e) default shall be made in the due observance or performance by the Borrower or Holdings shall fail to perform or observe any of the Guarantors of any covenantother term, condition covenant or agreement contained in any Loan Document on its part to be performed or observed and such failure shall remain unremedied for 30 days after the earlier of the date on which (i) any Responsible Officer of such Person becomes aware of such failure or (ii) written notice thereof shall have been given to Borrower or Holdings by the Administrative Agent or any Lender; provided that, (A) if such failure does not involve the payment of money to any Person and is not susceptible to cure within such 30 days, (B) such Person is proceeding with diligence and good faith to cure such default and such default is susceptible to cure and (C) the existence of such failure has not resulted in a Material Adverse Effect, such 30 day period shall be extended as may be necessary to cure such failure, such extended period not to exceed 90 days in the aggregate (inclusive of the original 30-day period); or
(i) Borrower or Holdings shall fail to pay any principal of, premium or interest on or any other amount payable in respect of (A)(x) any Debt for Borrowed Money of Borrower or Holdings that is outstanding or (y) any Hedge Agreements, in each case in an amount equal to the greater of $5,000,000 and five percent (5%) of trailing twelve month EBITDA or (B) without prejudice to Section 7.01(a) above, the Specified Debt Documents, in each case when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, early termination, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt for Borrowed Money, Hedge Agreement, or Specified Debt Document; or (ii) Borrower or Holdings is in default in the performance of or compliance with any term of, or any other event shall occur or condition shall exist under, any agreement or instrument relating to any such Debt for Borrowed Money, under any such Hedge Agreement, or under any Specified Debt Document, as applicable, and such default, non-compliance or other event shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause (or to entitle one or more Persons to declare) such Debt for Borrowed Money or amounts payable under such Hedge Agreement, or any Specified Debt Document, as applicable, to be immediately due and payable or required to be prepaid, redeemed, purchased or defeased (other than those specified in clauses by a AMERICAS 120651159 126 regularly scheduled required prepayment or redemption) or to cause (b)or to entitle one or more Persons to declare) the termination of such Hedge Agreement or such Specified Debt Document, (c) and (d) above) and such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borroweras applicable;
(i) any event Borrower or condition occurs that (A) results in any Material Indebtedness becoming due prior to Holdings shall generally not pay 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 debts as such Material Indebtedness to debts become due, or shall admit in writing its inability to require the prepayment, repurchase, redemption or defeasance thereof, prior to pay its scheduled maturity, in each case without such Material Indebtedness having been dischargeddebts generally, or any such event shall make a general assignment for the benefit of or condition having been cured promptlycreditors; or (ii) any proceeding shall be instituted by or against Borrower or Holdings seeking to adjudicate it a bankrupt or insolvent, or 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 Borrower entry of an order for relief or the appointment of a receiver, trustee 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 (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 90 days or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing actions sought in such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived proceeding (including in the form entry of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) order for relief in respect of the Borrower or any Material Subsidiaryagainst, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator custodian or other similar official for the Borrower for, it or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary its property) shall occur; or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition Person shall continue undismissed for sixty (60) days or an order or decree approving or ordering take any corporate action to authorize any of the foregoing shall be entered;actions set forth above in this clause (g); or
(i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) aboveany judgments or orders, (iii) apply for either individually or consent to in the appointment of a receiveraggregate, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part payment of the property or assets of the Borrower 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 fail generally to pay its debts as they become due;
(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating money in excess of the greater of (x) $7,000,000 and 15,000,000 or (y) 10% five percent (5%) of Adjusted Consolidated trailing twelve month EBITDA for the most recently ended Test Period as shall be rendered against Borrower or Holdings and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement of such timejudgment or order, which judgments are by reason of a pending appeal or otherwise, shall not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;in effect; or
(i) an ERISA Event occurs any non-monetary judgment or order shall be rendered against Borrower or Holdings that has resulted in a Material Adverse Effect, and there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(j) any provision of any Loan Document after delivery thereof pursuant to Section 4.01 shall for any reason cease to be valid and binding on or enforceable against Borrower or Holdings (to the extent such Persons are party to it), or Borrower or Holdings shall so state in writing; or
(k) any Security Document or financing statement after delivery thereof pursuant to Section 4.01 shall for any reason (other than pursuant to the terms thereof or as a result of action taken by any Agent or any other Secured Party) cease to create a valid and perfected first priority lien on and security interest in the Collateral to the extent contemplated hereby or thereby; or
(l) (i) there shall occur one or more ERISA Events which individually or in the aggregate results in liability of Borrower or Holdings and if such liability, together with all other such liabilities, is reasonably likely to result in a Material Adverse Effect; or (ii) a Lien or security interest under Section 430(k) of the Internal Revenue Code or under ERISA has been imposed on AMERICAS 120651159 127 the Collateral, Borrower, or any Employee Benefit Plan, and such Lien, together with all other such Liens, would reasonably be likely to result in a Material Adverse Effect; or
(m) any Event of Abandonment shall occur; or
(n) Borrower or Holdings shall be in breach of any material obligation, or a material default by Borrower or Holdings shall have occurred and be continuing, under: (i) a Specified Material Contract and such breach has resulted in or could reasonably be expected to result in liability an event that is material and adverse to the interests of the Lender Parties, or (ii) a Material Contract, and such breach has resulted in or could reasonably be expected to result in a Material Adverse Effect, and in each case of (i) and (ii), such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period equal to the lesser of cure period provided under the Material Contract or 30 days from the time Borrower or Holdings obtains knowledge thereof; provided, however, that, if (A) such breach cannot be cured within such period, (B) such breach is susceptible of cure, (C) Borrower or Holdings is proceeding with diligence and in good faith to cure such breach or such breach is being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books and (D) the Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower or Holdings to the effect of clauses (A), (B) and (C) above and stating what action Borrower or Holdings is taking to cure such breach then such cure period shall be extended to such date, not to exceed a total of 90 days, as shall be necessary for Borrower or Holdings diligently to cure such breach; or
(i) any Subsidiary Material Contract or any ERISA Affiliate Stonebriar Financing Document is terminated, cancelled or rescinded prior to the expiration thereof pursuant to its terms, (ii) Stonebriar or any other counterparty to a Material Contract shall materially breach, or be in material default under, or shall repudiate any such Material Contract, Consent or Stonebriar Financing Documents, as applicable; or (iii) Stonebriar or any other counterparty to a Material Contract shall be subject to an Insolvency Event; provided that there shall be no Event of Default under Title IV of ERISA in an aggregate amount this Section 7.01(o) if (1) any such event or circumstance relates to (x) a Material Contract that would is not a Specified Material Contract and is not reasonably be expected to result in a Material Adverse Effect or (iiy) any of to the Stonebriar Financing Documents in circumstances where the Debt thereunder is paid in full by the Borrower or any Subsidiary or any ERISA Affiliate fails to pay when dueas permitted hereunder, after (2) in the expiration case of any applicable grace period, any installment payment an Insolvency Event with respect to Stonebriar or any other counterparty to a Material Contract, Stonebriar or such other counterparty, as applicable, is continuing to perform all of its Withdrawal Liability material obligations under Section 4201 of ERISA under each Material Contract or Stonebriar Financing Documents, as applicable, to which it is a Multiemployer Plan in an aggregate amount that would party and such Insolvency Event could not reasonably be expected to have result in an event that is material and adverse to the interests of the Lender Parties, (3) in the case of any Consent or Material Contract that is not a Specified Material Adverse Effect;Contract of the type set forth in clauses (a), (b), (c) and (e) of the definition thereof, Borrower executes and delivers a Replacement Material Contract within sixty (60) days of any termination, cancellation, rescissions, repudiation, breach or Insolvency Event that would otherwise give rise to an Event of Default under this Section 7.01(o) or (4) in the case of a failure to perform or observe any material term, covenant or agreement contained in any Consent or any Material Contract, such failure to perform has not resulted in an event that is material and adverse to the interests of the Lender Parties; or AMERICAS 120651159 128
(ip) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of Borrower’s or Holdings’ Property is damaged, seized or appropriated without fair value being paid therefor (by insurance or otherwise) such as to allow replacement of such Property and/or prepayment of the Collateral shall cease Secured Obligations and to beallow Borrower and/or Holdings, or shall be asserted as applicable, to continue satisfying its Obligations under this Agreement and the other Transaction Documents, in writing by each case after giving effect to any cash Contributions to the common equity of Borrower or any other Loan Party not to beHoldings, a valid as applicable, for the purpose of funding such replacement and/or prepayment; then, and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign lawsevent, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (for so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or
(i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such eventexist, the Administrative Agent, Agent (A) shall at the request request, or may with the consent, of the Required Lenders, shallby notice to Borrower, declare the Commitments of each Lender and the obligation of each Lender to make the Advances to be terminated, whereupon the same shall forthwith terminate, and (B) shall at the request, or may with the consent, of the Required Lenders, by notice to the BorrowerXxxxxxxx, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding Advances, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith 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), whereupon the principal of the Loans so declared to be due and payableAdvances, together with accrued all such interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, such amounts shall become and be forthwith due and payable, without presentment, demand, protest or any other further notice of any kind, all of which are hereby expressly waived by Borrower; provided that, upon the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding and (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to the Borrower occurrence of an Event of Default described in clause (hg), (x) or (i) above, the Commitments of each Lender and the obligation of each Lender to make the Advances shall automatically terminate be terminated and (y) the principal of the Loans then outstandingAdvances, together with accrued all such interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, such amounts shall automatically become and be due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k)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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the . The Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) by written notice to the Administrative Agent may on behalf of the Lenders waive an existing Default or Event of Default and its consequences hereunder. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Agreement; but no such waiver shall extend to any subsequent or other Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; providedimpair any right consequent thereon. The Required Lenders, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute by written notice to the Lenders; providedAdministrative Agent, further that, no such two year limitation shall apply may on behalf of all of the Lenders rescind an acceleration and its consequences if prior to the expiration rescission would not conflict with any judgment or decree and if all existing Events of such two year period, Default (except nonpayment of principal or interest that has become due solely because of the Administrative Agent has commenced any remedial action with respect to such Default acceleration) have been cured or Event of Default. waived.
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
01Events of Default. In case of the happening of If any of the following events (each, an “Event Events of Default”):) shall occur:
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto Borrowers shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under obligation in respect of any Letter of Credit 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 by acceleration thereof or otherwise;
(cb) default the Borrowers shall be made in the payment of fail to pay any interest on any Loan or in the payment of any fee or any other amount (other than an amount referred to in clause (ba) aboveof this Article) due payable under this Agreement or any other Loan Document, when and as Document within three (3) Business Days after the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(c) any representation or warranty made or deemed made by or on behalf of any Borrower in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d) the Borrowers shall (i) fail to observe or perform any covenant, condition or agreement contained in Section 2.24, Section 6.02(a), Section 6.04 (with respect to the Parent Borrower’s existence), Section 6.09(b), Section 6.11, Section 6.13 or in Article VII, (ii) fail to observe or perform any covenant, condition or agreement contained in Section 6.01(e) and such default failure shall continue unremedied for a period of five (5) Business Days;
days after the earlier of any Borrower’s knowledge of such breach or notice thereof from the Agent to the Parent Borrower or (diii) default shall be made in the due observance fail to observe or performance by the Borrower of perform any covenant, condition or agreement contained in, in Section 5.01(a6.07 or Section 6.09(a) and such failure shall continue unremedied for a period of three (solely with respect 3) days after the earlier of any Borrower’s knowledge of such breach or notice thereof from the Agent to the Parent Borrower), 5.05(a) or 5.08 or in Article VI;
(e) default any Borrower shall be made in the due observance fail to observe or performance by the Borrower or any of the Guarantors of perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses clause (a), (b), (c) and ), or (d) above) of this Article), and such default failure shall continue unremedied for a period of thirty (30) days after the earlier of any Borrower’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) to the Parent Borrower;
(if) any Borrower 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 the expiration of any grace or cure period set forth therein); provided that any such failure with respect to any such Material Indebtedness that 4879-0244-9248v.7129 US 9692390v.1 CHA715/20025 is being contested in good faith by appropriate proceedings shall not constitute an Event of Default as long as any Borrower’s title to any substantial part of its property is not materially adversely affected, its use of such property in the ordinary course of business is not materially interfered with and adequate reserves with respect thereto have been set aside on its books in conformity with GAAP;
(g) any event or condition occurs that (A) results in any Material Indebtedness (i) becoming due or required to be prepaid, repurchased, redeemed or defeased or (ii) in the case of any Hedging Agreement, terminated, in each case, prior to its scheduled maturity or (B) that enables or permits (with all applicable grace periods having expiredor without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness (other than in respect of any Hedging Agreement) or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, provided that subclause (i) of this clause (fg) shall not apply to (1A) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss the voluntary sale or similar event with respect to transfer of the property or assets securing such Indebtedness, (2) termination events Indebtedness to the extent such sale or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that transfer is (A) remedied permitted by the Borrower or the applicable Subsidiary Section 7.05 or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof becomes due as a result of a voluntary refinancing thereof by any Borrower or any of its Subsidiaries or, in the acquisition of such person or (7) the redemption case of any Indebtedness incurred to finance an acquisition pursuant to in respect of a Hedging Agreement, a voluntary termination thereof by any special mandatory redemption feature that is triggered as a result Borrower or any of the failure of such acquisition to occur;
(g) there shall have occurred a Change of Controlits Subsidiaries;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) liquidation, reorganization or other relief in respect of the any Borrower or any of its Material SubsidiarySubsidiaries or its debts, or of a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the any Borrower or any of its Material Subsidiary Subsidiaries or for a substantial part of the property or assets of the Borrower or its assets, and, in any Material Subsidiary or (iii) the winding-upsuch case, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for sixty (60) a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the any Borrower or any of its Material Subsidiary Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Lawsimilar 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 the filing of any petition described in clause (h) aboveof this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the any Borrower or any of its Material Subsidiary Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) any Borrower or any of its Material Subsidiaries shall become unable unable, admit in writing its inability or fail generally to pay its debts as they become due;
(jk) one or more judgments for the failure by the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against any Borrower or any Material Subsidiary to pay one of its Subsidiaries or more final judgments aggregating in excess of any combination thereof and the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed same shall remain undischarged for a period of sixty (60) 60 consecutive daysdays during which execution shall not be effectively stayed, or any action shall be legally taken by a 4879-0244-9248v.7130 US 9692390v.1 CHA715/20025 judgment creditor to attach or levy upon any assets or properties of the any Borrower or any Material Subsidiary of its Subsidiaries to enforce any such judgment;
(il) an ERISA Event occurs shall have occurred that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary or any when, taken together with all other ERISA Affiliate under Title IV of ERISA in an aggregate amount Events that have occurred, would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected to have a Material Adverse Effect;
(i) any challenge by or on behalf of any Borrower to the validity of any Loan Document or the applicability or enforceability of any Loan Document strictly in accordance with the subject Loan Document’s terms or which seeks to void, avoid, limit, or otherwise adversely affect any security interest (other than with respect to an immaterial portion of the Collateral (taken as a whole) not of the type included in the Borrowing Base or accounts receivable) created by or in any Loan Document or any payment made pursuant thereto.
(ii) any challenge by or on behalf of any other Person to the validity of any Loan Document or the applicability or enforceability of any Loan Document strictly in accordance with the subject Loan Document’s terms or which seeks to void, avoid, limit, or otherwise adversely affect any security interest (other than with respect to an immaterial portion of the Collateral (taken as a whole) not of the type included in the Borrowing Base or accounts receivable) created by or in any Loan Document or any payment made pursuant thereto, in each case, as to which an order or judgment has been entered adverse to the Agent and the Lenders.
(iii) any Lien (other than with respect to an immaterial portion of the Collateral (taken as a whole) not of the type included in the Borrowing Base or accounts receivable) purported to be created by under any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the any Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having Lien on any Collateral, with the priority required by this Agreement the applicable Security Document, except as a result of the sale or other disposition of the relevant Security Document and subject applicable Collateral in a transaction permitted under the Loan Documents;
(n) a Change in Control shall occur;
(o) the Loan Guaranty shall fail to remain in full force or effect with respect to any Loan Guarantor or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty, or any Loan Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty, or shall give notice to such limitations effect;
(p) the occurrence of any uninsured loss to any material portion of the Collateral; provided that, for the avoidance of doubt, a self-insurance program maintained in accordance with Section 6.07(a) shall constitute insurance for purposes of this clause (p);
(q) the indictment of, or institution of any legal process or proceeding against, any Borrower, under any federal, state, municipal, and restrictions other civil or criminal statute, rule, regulation, order, or other requirement having the force of law where the relief, penalties, or remedies sought or available include the forfeiture of any material property of any Borrower and/or the imposition of any stay or other order, the effect of which could reasonably be to 4879-0244-9248v.7131 US 9692390v.1 CHA715/20025 restrain in any material way the conduct by the Borrowers, taken as are set forth herein and therein) a whole, of their business in the securitiesordinary course; or
(r) except as otherwise permitted hereunder, assets the determination by the Parent Borrower, whether by vote of the Parent Borrower’s board of directors or properties covered thereby, otherwise to: (i) suspend the operation of the Borrowers’ business in the ordinary course except to the extent that any such loss of perfection required in accordance with applicable law or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) required or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents requested by any Loan Party) or Governmental Authority, (ii) liquidate all or a material portion of the Guarantees pursuant to assets or store locations of all of the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect Borrowers (other than in accordance with the terms thereoftaken as a whole), or shall be asserted in writing by (iii) employ an agent or other third party to conduct any so called store closing, store liquidation or “Going Out Of Business” sales for all or a material portion of the Borrower assets or any Guarantor not to be in effect or not to be legal, valid and binding obligations store locations of all of the Borrowers (other than in accordance with the terms thereoftaken as a whole); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; or
(i) any material provision of any Loan Document shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, then, and in every such event (other than an event with respect to the any Borrower or any of its Material Subsidiaries described in clause (h) or (i) aboveof this Article), and at any time thereafter during the continuance of such event, the Administrative AgentAgent may, and at the request of the Required Lenders, Lenders shall, by notice to the Parent Borrower, take any either or all both of the following actions, at the same or different times: (i) terminate forthwith the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be forthwith due and payable in whole (or in part (part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities obligations of the Borrower Borrowers accrued hereunder and under any other Loan Documenthereunder, shall become forthwith due and payablepayable immediately, 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 Borrowers; and (iii) if require the Loans have been declared due and payable pursuant Borrowers to clause (ii) abovefurnish cash collateral in an amount equal to 103% of the Letter of Credit Outstandings, demand Cash Collateral pursuant to Section 2.05(k); and in case of any event with respect to the any Borrower or any of its Material Subsidiaries described in clause (h) or (i) aboveof this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities obligations of the Borrower Borrowers accrued hereunder and under any other Loan Documenthereunder, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k)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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. Borrowers.
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
01Events of Default. In case of the happening of If any of the following events (each, an “Event of Default”):) shall occur:
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under any Letter of Credit 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;
(cb) default the Borrower shall be made in the payment of fail to pay any interest on any Loan Loan, or in the payment of any fee or any other amount (other than an amount referred to in clause (ba) aboveof this Section) due payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such default failure shall continue unremedied for a period of five three (53) or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such representation or warranty under this Agreement or any other Loan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made;
(d) default shall be made in the due observance or performance by the Borrower of shall fail to observe or perform any covenant, condition or agreement contained inin Section 5.03(a), Section 5.01(a) 5.04 (solely with respect to the Borrower), 5.05(a’s existence) or 5.08 5.12 or in Article VI;
(e) default shall be made in the due observance or performance by the Borrower shall fail to observe or any of the Guarantors of perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clauses clause (ba), (cb) and or (d) aboveof this Section) and such default failure shall continue unremedied for a period of thirty (30) or more days after notice thereof from by the Administrative Agent Lender to the Borrower;; US-DOCS\138379750.7
(i) 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 Borrower or any trustee or agent on its or their behalf Subsidiary shall fail to cause make any such Material Indebtedness to become duepayment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or to require otherwise) in respect of the prepayment, repurchase, redemption Margin Loan Facility or defeasance thereof, prior to its scheduled maturityany other Indebtedness (other than Indebtedness under the Loan Documents), in each case without such Material Indebtedness having been dischargedbeyond the applicable grace period with respect thereto, or any such event of or condition having been cured promptlyif any; or (ii) the Borrower or any of the Subsidiaries Subsidiary shall fail to pay observe or perform any other agreement or condition relating to the principal Margin Loan Facility or such other Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of any Material which default or other event is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such Indebtedness at (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 or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated final maturity thereofmaturity; provided, that subclause (i) of this clause (ff)(ii) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss the voluntary sale or similar event with respect to transfer of the property or assets securing such Indebtedness, (2) termination events if such sale or similar events occurring transfer is permitted hereunder and under any Hedging Agreement that constitutes Material the documents providing for such Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as when required by under the terms thereof as a result of the acquisition of documents providing for such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occurIndebtedness;
(g) there shall have occurred a Change of Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiaryof its Subsidiaries or its debts, or of a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the Borrower or any Material Subsidiary of its Subsidiaries or for a substantial part of the property or assets of the Borrower or its assets, and, in any Material Subsidiary or (iii) the winding-upsuch case, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for a period of sixty (60) or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(ih) the Borrower or any Material Subsidiary of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code, as any Debtor Relief Law now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Lawin effect, (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 (hg) aboveof this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the Borrower or any Material Subsidiary of its Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any of its Subsidiaries shall become unable unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;
(i) an ERISA Event occurs that has resulted or would reasonably be expected to result in liability of there is entered against the Borrower or any Subsidiary (i) a final judgment or any ERISA Affiliate under Title IV order for the payment of ERISA money in an aggregate amount that would reasonably be expected (as to result in a Material Adverse Effect all such judgments and orders) exceeding $3,000,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied or failed to acknowledge coverage), or (ii) any of a non-monetary final judgment or order that, either individually or in the Borrower aggregate, has or any Subsidiary 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 would could reasonably be expected to have a Material Adverse EffectEffect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(ik) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest [reserved];
(perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (iil) a material portion Change of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, Control shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; oroccur;
(im) any material provision of any Loan Document shall Document, at any time after its execution and delivery and for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full US-DOCS\138379750.7 of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management AgreementsObligations, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease ceases to be a legal, valid in full force and binding obligation of any party thereto in accordance with its terms effect; or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not other Person contests in writing the validity or enforceability of any provision of any Loan Document; or the Borrower denies in writing that it has any or further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document; or
(n) any material provision of the Pledge Agreement, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or solely as a result of acts or omissions by the Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect or ceases to create a legal, valid and binding obligation perfected lien, with the priority set forth in the Pledge Agreement, on a material portion of any party thereto, the Pledged Collateral covered thereby; then, and in every such event (other than an event with respect to the Borrower described in clause (hg) or (ih) aboveof this Section), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shallLender may, by notice to the Borrower, take any or all of the following actions, at the same or different times: :
(i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole (or in part (part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities Obligations of the Borrower accrued hereunder and under any other Loan Documenthereunder, shall become forthwith due and payablepayable immediately, 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 (iii) if the Loans have been declared due and payable pursuant to clause ; and
(ii) aboveexercise all rights and remedies available to it and the Lenders under the Loan Documents and Applicable Law; provided that, demand Cash Collateral pursuant to Section 2.05(k); and in case of any event with respect to the Borrower described in clause (hg) or (ih) aboveof this Section, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities of the Borrower Obligations accrued hereunder and under any other Loan Documenthereunder, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k)payable, in each case without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, . Notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary notwithstanding; providedDocument, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the no Default or Event of Default under this Agreement or (y) disclosure any other Loan Document shall occur or be deemed to the Lenders occur as a result of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. Star Breach Event.
Appears in 1 contract
Samples: Credit Agreement (Star Holdings)
01Events of Default. In case of the happening of If any of the following events (each, an “Event "Events of Default”):") shall occur and be continuing:
(a) any representation or warranty made or deemed made by the The Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto LC Subsidiary shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan Advance or any reimbursement amount obligation under any Letter of Credit when and as the same becomes due and payable; or shall fail to pay any interest on any Advance, fees or any other amounts hereunder within two days after the same become due and payablepayable by it; or
(b) Any representation or warranty made by the Borrower herein (whether made on behalf of itself, whether at the due date thereof an LC Subsidiary or at a date fixed for prepayment thereof otherwise) or by acceleration thereof the Borrower (or otherwise;any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or
(c) default The Borrower shall be made fail to perform or observe (i) the covenant contained in the payment of Section 7.03; or (ii) any interest on any Loan term, covenant or agreement contained in the payment of any other amount Section 7.02(c) or (other than an amount referred to in clause (bd) 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 five days after written notice thereof shall have been given to the Borrower by the Issuing Bank, the Agent or any Lender; or (5iii) Business Days;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 Issuing Bank, the Agent or any Lender; or
(d) default The Borrower or any of its Subsidiaries shall be made 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 due observance or performance by aggregate (but excluding Debt hereunder) of the Borrower of any covenant, condition or agreement contained in, Section 5.01(a) such Subsidiary (solely with respect to as the Borrowercase may be), 5.05(a) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or 5.08 or in Article VI;
(e) default otherwise), and such failure shall be made continue after the applicable grace period, if any, specified in the due observance agreement or performance instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt (other than any such Debt owed to a Lender or an Affiliate of a Lender if such event or condition shall relate solely to a restriction on the pledge or other disposition of Margin Stock owned by the Borrower or any of the Guarantors of its Subsidiaries); or any covenantsuch Debt shall be declared to be due and payable, condition or agreement contained in any Loan Document required to be prepaid (other than those specified in clauses (bby a regularly scheduled required prepayment), (c) and (d) above) and redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or defease such default Debt shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent be required to be made, in each case prior to the Borrower;stated maturity thereof; or
(ie) 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 The Borrower or any trustee or agent on of its or their behalf to cause any Subsidiaries shall generally not pay its debts as such Material Indebtedness to debts become due, or shall admit in writing its inability to require the prepayment, repurchase, redemption or defeasance thereof, prior to pay its scheduled maturity, in each case without such Material Indebtedness having been dischargeddebts generally, or any such event shall make a general assignment for the benefit of or condition having been cured promptlycreditors; or (ii) any proceeding shall be instituted by or against the Borrower or any of the its Subsidiaries shall fail seeking to pay the principal adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss it or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring its debts under any Hedging Agreement that constitutes Material Indebtedness (other than at law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form entry of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge order for relief or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of 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 or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator custodian or other similar official for the Borrower or any Material Subsidiary it or for a any substantial part of its property and, in the property or assets case of the Borrower or any Material Subsidiary or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or petition shall continue undismissed unstayed for sixty (60) days a period of 60 days, or an order or decree approving or ordering any of the foregoing shall be entered;
actions sought in such proceeding (i) including, without limitation, the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking entry of an order for relief under the Bankruptcy Code, as now constituted or hereafter amendedagainst, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower or any Material Subsidiary or for a substantial part of its Subsidiaries shall take any corporate action to authorize any of the property actions set forth above in this subsection (e); or
(f) Any judgment or assets order for the payment of money in excess of $10,000,000 shall be rendered against the Borrower 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 fail generally to pay its debts as they become due;
(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 Subsidiaries and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;
either (i) an ERISA Event occurs that has resulted enforcement proceedings shall have been commenced by any creditor upon such judgment or would reasonably be expected to result in liability of the Borrower or any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect order or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected to have a Material Adverse Effect;
(i) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or there shall be asserted in writing any period of ten consecutive days during which a stay of enforcement of such judgment or order, by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result reason of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach pending appeal or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligationsotherwise, shall cease to not be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacementeffect; or
(ig) any material provision a Change of any Loan Document Control shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not to be a legal, valid and binding obligation of any party thereto, have occurred; then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, Agent shall at the request request, or may with the consent, of the Required Majority Combined 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, (iiA) declare the Loans then outstanding obligation of each A Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, (B) declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith 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), whereupon the principal of the Loans so declared to be due and payableAdvances, together with accrued all such interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, such amounts shall become and be forthwith due and payable, without presentment, demand, protest or any other further notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document (C) declare the obligation of the Issuing Bank to issue further Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and/or (D) demand that the Borrower, and if such demand is made the Borrower shall, pay to the contrary notwithstanding Agent for the benefit of the Issuing Bank, an amount in immediately available funds equal to the then outstanding Letter of Credit Liability (plus the amounts specified by Section 3.12, if applicable) which shall be held by the Agent (or the Issuing Bank) as cash collateral in a cash collateral account under the exclusive control and dominion of the Agent (iiior Issuing Bank) if and applied to the Loans have been declared due and payable pursuant to clause (ii) abovereduction of such Letter of Credit Liability as drawings are made on outstanding Letters of Credit; provided, demand Cash Collateral pursuant to Section 2.05(k); and however, that in any the event of an actual or deemed entry of an order for relief with respect to the Borrower described in clause (h) or (i) aboveany of its Subsidiaries under the Federal Bankruptcy Code, the Commitments obligation of each A Lender to make A Advances shall automatically terminate and be terminated, the principal of the Loans then outstandingoutstanding Advances, together with accrued all such interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, such amounts shall automatically become and be due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k)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 Borrower and the contrary notwithstanding; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent obligation of the Default or Event Issuing Bank to Issue Letters of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities Credit shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. automatically be terminated.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
01Events of Default. In case of the happening of If any of the following events (each, an “Event of Default”):) shall occur:
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under any Letter of Credit 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;
(cb) default the Borrower shall be made in the payment of fail to pay any interest on any Loan Loan, or in the payment of any fee or any other amount (other than an amount referred to in clause (ba) aboveof this Section) due payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such default failure shall continue unremedied for a period of five three (53) or more Business Days;
(dc) default any representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, shall be made prove to have been incorrect in any material respect (or, in the due observance or performance by the Borrower case of any covenantsuch representation or warranty under this Agreement or any other Loan Document already qualified by materiality, condition such representation or agreement contained in, Section 5.01(awarranty shall prove to have been incorrect) (solely with respect to the Borrower), 5.05(a) when made or 5.08 or in Article VIdeemed made;
(ed) default shall be made in the due observance or performance by the Borrower shall fail to observe or any of the Guarantors of perform any covenant, condition or agreement contained in Section 5.03(a), 5.04 (with respect to the Borrower’s existence) or 5.12 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clauses clause (ba), (cb) and or (d) aboveof this Section) and such default failure shall continue unremedied for a period of thirty (30) or more days after notice thereof from by the Administrative Agent Lender to the Borrower;
(i) 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 Borrower or any trustee or agent on its or their behalf Subsidiary shall fail to cause make any such Material Indebtedness to become duepayment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or to require otherwise) in respect of the prepayment, repurchase, redemption Margin Loan Facility or defeasance thereof, prior to its scheduled maturityany other Indebtedness (other than Indebtedness under the Loan Documents), in each case without such Material Indebtedness having been dischargedbeyond the applicable grace period with respect thereto, or any such event of or condition having been cured promptlyif any; or (ii) the Borrower or any of the Subsidiaries Subsidiary shall fail to pay observe or perform any other agreement or condition relating to the principal Margin Loan Facility or such other Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of any Material which default or other event is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such Indebtedness at (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 or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated final maturity thereofmaturity; provided, that subclause (i) of this clause (ff)(ii) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss the voluntary sale or similar event with respect to transfer of the property or assets securing such Indebtedness, (2) termination events if such sale or similar events occurring transfer is permitted hereunder and under any Hedging Agreement that constitutes Material the documents providing for such Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as when required by under the terms thereof as a result of the acquisition of documents providing for such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occurIndebtedness;
(g) there shall have occurred a Change of Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiaryof its Subsidiaries or its debts, or of a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the Borrower or any Material Subsidiary of its Subsidiaries or for a substantial part of the property or assets of the Borrower or its assets, and, in any Material Subsidiary or (iii) the winding-upsuch case, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for a period of sixty (60) or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(ih) the Borrower or any Material Subsidiary of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code, as any Debtor Relief Law now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Lawin effect, (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 (hg) aboveof this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator conservator or similar official for the Borrower or any Material Subsidiary of its Subsidiaries or for a substantial part of the property or assets of the Borrower or any Material Subsidiaryits assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any of its Subsidiaries shall become unable unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) the failure by the Borrower or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed for a period of sixty (60) consecutive days, or any action shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or any Material Subsidiary to enforce any such judgment;
(i) an ERISA Event occurs that has resulted or would reasonably be expected to result in liability of there is entered against the Borrower or any Subsidiary (i) a final judgment or any ERISA Affiliate under Title IV order for the payment of ERISA money in an aggregate amount that would reasonably be expected (as to result in a Material Adverse Effect all such judgments and orders) exceeding $3,000,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied or failed to acknowledge coverage), or (ii) any of a non-monetary final judgment or order that, either individually or in the Borrower aggregate, has or any Subsidiary 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 would could reasonably be expected to have a Material Adverse EffectEffect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(ik) any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion of the Collateral shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected security interest [reserved];
(perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (iil) a material portion Change of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, Control shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacement; oroccur;
(im) any material provision of any Loan Document shall Document, at any time after its execution and delivery and for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management AgreementsObligations, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease ceases to be a legal, valid in full force and binding obligation of any party thereto in accordance with its terms effect; or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not other Person contests in writing the validity or enforceability of any provision of any Loan Document; or the Borrower denies in writing that it has any or further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document; or
(n) any material provision of the Pledge Agreement, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or solely as a result of acts or omissions by the Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect or ceases to create a legal, valid and binding obligation perfected lien, with the priority set forth in the Pledge Agreement, on a material portion of any party thereto, the Pledged Collateral covered thereby; then, and in every such event (other than an event with respect to the Borrower described in clause (hg) or (ih) aboveof this Section), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shallLender may, by notice to the Borrower, take any or all of the following actions, at the same or different times: :
(i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole (or in part (part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities Obligations of the Borrower accrued hereunder and under any other Loan Documenthereunder, shall become forthwith due and payablepayable immediately, 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 (iii) if the Loans have been declared due and payable pursuant to clause ; and
(ii) aboveexercise all rights and remedies available to it and the Lenders under the Loan Documents and Applicable Law; provided that, demand Cash Collateral pursuant to Section 2.05(k); and in case of any event with respect to the Borrower described in clause (hg) or (ih) aboveof this Section, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, premium (including Applicable Margin) thereon and any unpaid accrued all fees and all other liabilities of the Borrower Obligations accrued hereunder and under any other Loan Documenthereunder, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k)payable, in each case without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, . Notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary notwithstanding; providedDocument, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the no Default or Event of Default under this Agreement or (y) disclosure any other Loan Document shall occur or be deemed to the Lenders occur as a result of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. Star Breach Event.
Appears in 1 contract
Samples: Credit Agreement (Safehold Inc.)
01Events of Default. In case of the happening of If any of the following events (each, an “Event Events of Default”):) shall occur and be continuing:
(ai) the Borrower shall fail to pay any principal of any Advance when the same shall become due and payable or (ii) the Borrower shall fail to pay any interest on any Advance, or any Loan Party shall fail to make any other payment under any Loan Document, in each case under this clause (ii) within five Business Days after the same becomes due and payable; or
(b) any representation or warranty made or deemed made in writing by the Borrower any Loan Party (or any Guarantor herein of its officers (or persons performing similar functions) under or in connection with any other Credit Agreement Loan Document or (including, without limitation, in any certificate or document financial information delivered pursuant hereto or thereto thereto)) shall prove to have been false or misleading incorrect in any material respect when so made or deemed any financial projections prepared by or on behalf of any Loan Party and made and, available in writing to the extent capable of being curedAdministrative Agent, including by a restatement of the Collateral Agent, or any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from Lender shall prove not to have been prepared in good faith based upon assumptions that were reasonable at the time made and at the time made available to the Administrative Agent to or the Borrower;
(b) default shall be made in the payment of any principal of any Loan or any reimbursement amount under any Letter of Credit 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;Collateral Agent; or
(c) default the Borrower or any Additional Alliance Entity shall be made fail to perform or observe any term, covenant or agreement contained in the payment of any interest on any Loan Sections 2.14, 5.01(d), (e), or in the payment of any other amount (other than an amount referred to in clause (b) above) due under any Loan Documenti), when and as the same shall become due and payable5.02, and such default shall continue unremedied for a period of five (5) Business Days;5.03(a), 5.04 or 5.05; or
(d) default any Loan Party shall be made in the due observance fail to perform or performance by the Borrower of observe any covenantother term, condition or agreement contained in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the Borrower or any of the Guarantors of any covenant, condition covenant or agreement contained in any Loan Document (other than those specified in clauses (b), (c) and (d) above) and on its part to be performed or observed if such default failure shall continue remain unremedied for a period of thirty (30) 30 days after notice thereof from the Administrative Agent to earlier of the Borrower;
date on which (i) 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 a Responsible Officer becomes aware of any Material Indebtedness or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; failure or (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent or any of the Subsidiaries Lender; or
(e) any Loan Party shall fail to pay the any principal of, premium or interest on or any other amount payable in respect of any Material Indebtedness at Debt of such Loan Party (as the stated final maturity thereof; providedcase may be) that is outstanding in a principal amount (or, that subclause (iin the case of any Swap, the value of obligations under such Swap) of this clause at least $35,000,000 either individually or in the aggregate (f) shall not apply to (1) any secured Indebtedness that but excluding Debt outstanding hereunder), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, regularly scheduled required prepayment or redemption, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtednessthereunder, in each case, case prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, stated maturity thereof; or
(4f) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of Loan Party shall generally not pay its debts as such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of 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 or any Material Subsidiarydebts become due, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary or (iii) the winding-up, liquidation, reorganization, dissolution, compromise, arrangement or other relief of the Borrower or any Material Subsidiary (except shall admit in a transaction permitted hereunder); and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, as now constituted or hereafter amendedwriting its inability to pay its debts generally, or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower or any Material Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) shall make a general assignment for the benefit of creditors creditors; or (vi) become unable any proceeding shall be instituted by or fail generally against any Loan Party seeking to pay adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts as they become due;
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee 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 (jbut not instituted by it) the failure that is being diligently contested by the Borrower it in good faith, either such proceeding shall remain undismissed or any Material Subsidiary to pay one or more final judgments aggregating in excess of the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, which judgments are not discharged or effectively waived or stayed unstayed for a period of sixty 60 days or any of the actions sought in such proceeding (60) consecutive daysincluding, without limitation, the entry of an order for relief against, or the appointment of a receiver, Credit Agreement trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the aggregate, for the payment of money in excess of $35,000,000 shall be legally taken by a judgment creditor to attach or levy upon assets or properties of the Borrower or rendered against any Material Subsidiary to enforce any such judgment;
Loan Party and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an ERISA Event occurs that of Default under this Section 6.01(g) if and for so long as (A) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (B) such insurer, which shall be rated at least “A” by A.M. Best Company at the time such insurance policy is issued to such Loan Party, has resulted been notified of, and has not disputed the claim made for payment of, the amount of such judgment or would reasonably order; or
(h) any non-monetary judgment or order shall be expected to result in liability of the Borrower or rendered against any Subsidiary or any ERISA Affiliate under Title IV of ERISA in an aggregate amount Loan Party that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary 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 would reasonably be expected likely to have a Material Adverse Effect;
(i) any security interest purported to be created by any Security Document , and to extend to assets that constitute a material portion of the Collateral shall cease to be, or there shall be asserted in writing any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by the Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or the application thereof, or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result reason of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach pending appeal or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligationsotherwise, shall cease to not be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacementeffect; or
(i) any material provision of any Loan Document after delivery thereof pursuant to Section 3.01, 5.01(i) or 5.01(o) shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction in full of all pursuant to the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Secured Supplier Receivables Agreements)terms hereof) cease to be a legal, valid and binding obligation on or enforceable against any Loan Party to it in any material respect, or any such Loan Party shall so state in writing; or
(j) a Change of any party thereto in accordance with its terms or Control shall occur; or
(iik) any Loan Collateral Document after delivery thereof pursuant to Section 3.01, 5.01(i) or 5.01(o) shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien securing the Obligations (subject to Liens permitted by Section 5.02(a)) on the Collateral purported to be asserted in writing by the Borrower covered thereby; or
(l) any Loan Party or any Guarantor not ERISA Affiliate shall incur, or shall be reasonably likely to incur liability in excess of $35,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of a Loan Party or any ERISA Affiliate from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer Plan; or
(m) an assertion shall be made by any Person in any court proceeding or by any Governmental Authority against any Loan Party or any of its Subsidiaries, of any claims or liabilities, whether accrued, absolute or contingent, based on or arising under any Environmental Law that is reasonably likely to be determined adversely to such Loan Party or any of its Subsidiaries, and the amount thereof (either individually or in the aggregate) is reasonably likely to have a legal, valid Material Adverse Effect (insofar as such amount is payable by such Loan Party or any of its Subsidiaries but after deducting any portion thereof that Credit Agreement is reasonably expected to be paid by other creditworthy Persons jointly and binding obligation of any party thereto, severally liable therefor); then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, Agent shall at the request request, or may with the consent, of the Required Lenders, shall, (A) by notice to the Borrower, take any declare the Commitments of each Lender and the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank or all a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of the following actionseach Issuing Bank to issue Letters of Credit to be terminated, at whereupon the same or different times: (i) terminate shall forthwith the Commitmentsterminate, (ii) and declare the Loans then outstanding Advances, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith 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), whereupon the principal of the Loans so declared to be due and payableNotes, together with accrued all such interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, 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 Borrower and (B) by notice to each party required under the terms of any agreement in support of which a Standby Letter of Credit is issued, request that all Obligations under such agreement be declared to be due and payable; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States of America, (I) the Commitments of each Lender and the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank or Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall automatically be terminated and (II) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any 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 (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in any event with respect to 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, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. .
Appears in 1 contract
01Events of Default. In case of the happening of any Each of the following events (each, shall constitute an “Event of Default”):Default under this Agreement:
(a) any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto The Borrowers shall prove fail to have been false or misleading in any material respect when so made or deemed made and, to the extent capable of being cured, including by a restatement of any relevant financial statements, such false or misleading representation or warranty remains incorrect for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower;
(b) default shall be made in the payment of pay any principal of any Loan or any reimbursement amount under any Letter of Credit 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;
(cb) default The Borrowers shall be made in the payment of fail to pay any interest on any Loan or in the payment of any fee or any other amount (other than an amount referred to in clause (ba) aboveof this Section 7.01) due payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such default failure shall continue unremedied for a period of five three (53) Business Days;
(dc) default shall be Any representation or warranty made in the due observance or performance deemed made by the Borrower or on behalf of any covenant, condition Loan Party or agreement contained any Subsidiary in, Section 5.01(a) (solely with respect to the Borrower), 5.05(a) or 5.08 or in Article VIconnection with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made;
(ed) default Any Loan Party shall be made in fail to perform or observe any agreement, covenant or obligation under the due observance or performance by the Borrower or any of the Guarantors of any covenant, condition or agreement contained in any Loan Document following provisions:
(other than those specified in clauses (b), (ci) Sections 5.01(c) through 5.01(f) and (dSection 5.01(h) abovethrough Section 5.01(l) of this Agreement and such default failure shall continue unremedied for a period of thirty (30) days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent Lender;
(ii) Section 5.01(b) (other than Section 5.01(b)(vii)(A)) of this Agreement and such failure shall continue unremedied for a period of two (2) Business Days after the occurrence thereof; or
(iii) Section 5.01(a)(i), Section 5.01(b)(vii)(A), Section 5.01(g), Section 5.02 or Section 5.03 of this Agreement.
(e) Any Loan Party fails to comply with or perform any covenant or other provision of this Agreement or any other Loan Document after any applicable notice and cure periods (which failure does not constitute an Event of Default under any of the Borrowerpreceding provisions of this Section 7.01) and such failure shall continue unremedied for a period of 15 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender;
(f) At any time, for any reason, (A) any Loan Document as a whole that materially affects the ability of the Lender to enforce the Obligations or enforce its rights against the Collateral ceases to be in full force and effect or any Loan Party seeks to repudiate its obligations thereunder and the Liens intended to be created thereby are, or any Loan Party seeks to render such Liens, invalid and unperfected, or (B) Liens on Collateral in favor of the Lender contemplated by the Loan Documents shall, at any time, for any reason, be invalidated or otherwise cease to be in full force and effect, or such Liens shall not have the perfection or priority contemplated by this Agreement or the Loan Documents;
(g) Default by any Loan Party in the payment when due, whether by acceleration or otherwise, of (i) any Subordinated Debt, or (ii) any other Debt for borrowed money having a principal amount of $10,000 or more, or default in the performance or observance of any obligation or condition with respect to any such Subordinated Debt or other Debt, in each case if the effect of such default is to accelerate the maturity of such Subordinated Debt or other Debt or the holder or holders thereof, or any trustee or agent for such holders, cause such Subordinated Debt or other Debt to become due and payable prior to its scheduled maturity;
(h) [Reserved];
(i) Any Loan Party admitting in writing its inability to pay its debts as they mature or an administrative or judicial order of dissolution or determination of insolvency being entered against 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 Loan Party; or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become dueLoan Party applying for, consenting to, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, acquiescing in each case without such Material Indebtedness having been discharged, or any such event of or condition having been cured promptly; or (ii) the Borrower or any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that subclause (i) of this clause (f) shall not apply to (1) any secured Indebtedness that becomes due as a result of a disposition, transfer, condemnation, insured loss or similar event with respect to the property or assets securing such Indebtedness, (2) termination events or similar events occurring under any Hedging Agreement that constitutes Material Indebtedness (other than at the stated final maturity thereof), (3) any breach or default that is (A) remedied by the Borrower or the applicable Subsidiary or (B) waived (including in the form of an amendment) by the required holders of the applicable item of Indebtedness, in each case, prior to the acceleration of Loans and Commitments pursuant to this Section 7.01, (4) any customary offer to repurchase provisions upon an asset sale, (5) customary debt and equity proceeds prepayment requirements contained in any bridge or other interim credit facility, (6) Indebtedness of any person assumed in connection with the acquisition of such person to the extent that such Indebtedness is repaid as required by the terms thereof as a result of the acquisition of such person or (7) the redemption of any Indebtedness incurred to finance an acquisition pursuant to any special mandatory redemption feature that is triggered as a result of the failure of such acquisition to occur;
(g) there shall have occurred a Change of 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 or any Material Subsidiary, or of a substantial part of the property or assets of the Borrower or any Material Subsidiary, under the Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or any other Debtor Relief Law, (ii) the appointment of a receivertrustee or receiver for such Loan Party or any property thereof, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official any Loan Party making a general assignment for the Borrower benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee or receiver being appointed for any Material Subsidiary Loan Party or for a substantial part of the property or assets of the Borrower any Loan Party and not being discharged within sixty (60) days; or any Material Subsidiary or (iii) the winding-up, liquidationbankruptcy, reorganization, dissolutiondebt arrangement, compromise, arrangement or other relief of the Borrower proceeding under any bankruptcy or insolvency law, or any Material Subsidiary (except dissolution or liquidation proceeding being instituted by or against any Loan Party, and, if involuntary, being consented to or acquiesced in a transaction permitted hereunder); and such proceeding by any Loan Party or petition shall continue undismissed remaining for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary 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 any other Debtor Relief 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 (h) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner, liquidator or similar official for the Borrower or any Material Subsidiary or for a substantial part of the property or assets of the Borrower 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 fail generally to pay its debts as they become dueundismissed;
(j) There shall be a Change of Control without the failure by prior written consent of the Borrower or any Material Subsidiary to pay one Lender;
(k) [Reserved];
(l) One or more final judgments aggregating for the payment of money in an aggregate amount in excess of $10,000 (in each case to the greater of (x) $7,000,000 and (y) 10% of Adjusted Consolidated EBITDA for extent not covered by third-party insurance as to which the most recently ended Test Period as insurer has been notified of such timejudgment and does not deny coverage) shall be rendered against any Loan Party, which judgments are not discharged any Subsidiary or effectively waived or stayed any combination thereof and the same shall remain undischarged for a period of sixty thirty (6030) consecutive daysdays after becoming due during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets or properties of the Borrower any Loan Party or any Material Subsidiary to enforce any such judgment;
(i) an ERISA Event occurs that has resulted judgment or would reasonably be expected to result in liability of the Borrower any Loan Party or any Subsidiary shall fail within thirty (30) days after becoming due to discharge one or any ERISA Affiliate under Title IV of ERISA more non-monetary judgments or orders which, individually or in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect or (ii) any of the Borrower or any Subsidiary or any ERISA Affiliate fails to pay when dueaggregate, 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 would could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;
(im) If the plan administrator of any security interest purported to be created by any Security Document and to extend to assets that constitute a material portion Plan applies under Section 412(d) of the Collateral shall cease to be, or shall be asserted in writing by Code for a waiver of the Borrower or any other Loan Party not to be, a valid minimum funding standards of Section 412(a) of the Code and perfected security interest (perfected as or having the priority required by this Agreement or Lender believes 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 loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries (other than Foreign Subsidiaries that are Loan Parties) or substantial business hardship upon which the application thereof, for the waiver is based could reasonably be expected to cause or from the Collateral Agent no longer maintaining possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or any Uniform Commercial Code financing statement having lapsed as a result of a Uniform Commercial Code continuation statements not having been filed in a timely manner (so long as such failure does not result from the breach or non-compliance with the Loan Documents by any Loan Party) or (ii) a material portion of the Guarantees pursuant to the Loan Documents by the Guarantors guaranteeing the Obligations, shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Borrower or any Guarantor not to be in effect or not to be legal, valid and binding obligations (other than in accordance with the terms thereof); provided, that no Event of Default shall occur under this Section 7.01(l) if the Loan Parties cooperate with the Collateral Agent to replace or perfect such security interest and Lien, such security interest and Lien is promptly replaced or perfected (as needed) and the rights, powers and privileges of the Secured Parties are not materially adversely affected by such replacementMaterial Adverse Effect; or
(in) The Guaranty or any material provision other Guarantee of any Loan Document the Obligations shall for any reason (other than as expressly permitted hereunder or thereunder or satisfaction fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management AgreementsGuaranty or any Guarantee of the Obligations, Secured Hedge Agreements and Secured Supplier Receivables Agreements)) cease to be a legal, valid and binding obligation of any party thereto in accordance with its terms or (ii) any Loan Document shall for any reason be asserted in writing by the Borrower or any Guarantor not shall fail to be a legal, valid and binding obligation of comply with any party thereto, then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take any terms or all provisions of the following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith 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), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees 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 Guaranty or any other Guarantee of the Obligations to which it is a party, or any Guarantor shall deny that it has any further liability under the Guaranty or any Guarantee of the Obligations to which it is a party, or shall give notice to such effect, including, but not limited to any notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document termination delivered pursuant to the contrary notwithstanding and (iii) if the Loans have been declared due and payable pursuant to clause (ii) above, demand Cash Collateral pursuant to Section 2.05(k); and in terms of any event with respect to the Borrower described in clause (h) or (i) above, the Commitments shall automatically terminate and the principal Guarantee of the Loans then outstanding, together with accrued interest thereon, premium (including Applicable Margin) and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for Cash Collateral to the full extent permitted under Section 2.05(k), 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; provided, that, with respect to any Event of Default (other than an Event of Default under clause (d) above with respect to Section 5.05(a) or, for the avoidance of doubt, an Event of Default under clause (h) or (i) above), neither the Required Lenders nor the Administrative Agent may take any action described in clause (i) or (ii) of this paragraph after the date that is two years after the earlier of (x) notice to the Administrative Agent of the Default or Event of Default or (y) disclosure to the Lenders of the applicable event leading to such Default or Event of Default; provided, further that it is understood and agreed that a press release, a filing with the SEC or a posting to the applicable Platform for the Facilities shall constitute notice to the Lenders; provided, further that, no such two year limitation shall apply if prior to the expiration of such two year period, the Administrative Agent has commenced any remedial action with respect to such Default or Event of Default. Obligations.
Appears in 1 contract
