1Events of Default. The occurrence of any of the following events shall constitute an “Event of Default”: (a) the Company shall fail to pay (i) any principal of any Advance when due and payable, or (ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) any interest on any Advance or any fee or other Obligation payable hereunder within five (5) Business Days after such interest or fee or other Obligation becomes due and payable; (b) any representation or warranty made by or on behalf of the Company in this Agreement or any other Credit Document or in any certificate, document, report, financial or other written statement furnished at any time pursuant to any Credit Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made; (c) (i) the Company or any of its Subsidiaries shall fail to perform or observe any term, covenant or agreement contained in Section 6.3(a) (solely with respect to the Company), Section 6.10, Article VII or Article VIII; or (ii) the Company or any of its Subsidiaries shall fail to comply with Section 6.8(b) and such failure under this clause (ii) shall continue for five (5) Business Days after the occurrence of such breach; or (iii) the Company shall fail to perform or observe any other term, covenant or agreement on its part to be performed or observed in this Agreement or in any other Credit Document and such failure under this clause (iii) shall continue for thirty (30) consecutive days after the earlier of (x) a Designated Officer obtaining knowledge of such breach and (y) written notice thereof by means of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the Company by the Agent or the Majority Banks; (d) the Company or any Material Subsidiary shall: (i) fail to pay any Debt (other than the payment obligations described in clause (a) above) in excess of $50,000,000, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any agreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), in each case in accordance with the terms of such agreement or instrument, prior to the stated maturity thereof; or (iv) generally not, or shall admit in writing its inability to, pay its debts as such debts become due; (e) the Company or any Material Subsidiary: (i) shall make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its property; or (v) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty (60) days or more; or (vi) shall take any corporate action to authorize any of the actions set forth above in this clause (e); (f) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order or (ii) there shall be any period of more than thirty (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; (g) any material provision of any Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; or the Company shall so assert in writing; (h) any Plan Termination Event with respect to a Plan shall have occurred, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount); (i) a Change in Control shall occur; or (j) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any portion of the Collateral purported to be covered thereby, except as permitted by the terms of any Credit Document.
Appears in 1 contract
1Events of Default. The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an “Event of Default”” hereunder which shall be deemed to be continuing until waived in writing by Agent in accordance with Section 9.3 or cured in accordance with the terms and conditions of this Agreement:
(a) the Company Any Credit Party shall fail to pay (i) any the principal in respect of any Advance the Loan when due and payablepayable or declared due and payable in accordance with the terms hereof, or (ii) any Reimbursement Obligation within one (1) Business Day after interest in respect of the same becomes due, or (iii) any interest on any Advance Loan or any fee or other Obligation payable hereunder Obligations within five three (53) Business Days days after any such interest or fee or other Obligation becomes due and payable;payable in accordance with the terms hereof or any other Loan Document; or
(b) any representation or warranty made by or on behalf of the Company in this Agreement or any other Credit Document Loan Document, or in any certificatewritten statement pursuant hereto or thereto, document, or in any written report, financial statement or certificate made or delivered to Agent by Borrower or any other written statement furnished at any time pursuant to any Credit Document Party shall prove to have been be untrue or incorrect in any material respect on or as of the date when made or deemed made;, regardless of whether such breach involves a representation or warranty with respect to a Credit Party that has not signed this Agreement; or
(c) Borrower or any other Credit Party shall fail or neglect to perform, keep or observe any of the covenants, agreements, requirements, or other terms or provisions to be performed, kept or observed by Borrower or such other Credit Party contained in (i) the Company or any of its Subsidiaries shall fail to perform or observe any term, covenant or agreement contained in Section 6.3(a3.1(a)(i)(A) (solely with respect to the Companysuch Person’s legal existence), Section 6.103.16, Article VII Section 3.22, Section 3.23, Section 3.26(c), Section 3.31, Section 3.36, Section 4.1(a), (b). (c), (d) or Article VIII; (j), Section 4.2, Section 4.3, each subsection of Section 5, and each subsection of Section 6 of this Agreement, or the SBA Side Letter, or (ii) the Company Section 3.21 or any other provision of its Subsidiaries shall fail Section 4.1 (other than referred to comply with Section 6.8(bunder the preceding clause (i)) and such failure under this clause (ii) or neglect shall continue unremedied for five a period of three (53) Business Days after the occurrence of such breachDays; or
(d) Borrower or (iii) the Company any other Credit Party shall fail or neglect to perform perform, keep or observe any of the covenants, promises, agreements, requirements, or other term, covenant terms or agreement on its part provisions to be performed performed, kept or observed by Borrower or such other Credit Party contained in Section 3.26 (other than Section 3.26(c)) or Section 3.28 of this Agreement, and such failure or neglect shall continue unremedied for a period of three (3) Business Days; or
(e) Borrower or any other Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, or other terms or provisions to be performed, kept or observed by Borrower or such other Credit Party contained in this Agreement or any of the other Loan Documents (other than as specified in any other Credit Document paragraphs (a) through (d) above), and such failure under this clause (iii) or neglect shall continue unremedied for a period of thirty (30) consecutive days after the earlier of (xi) a Designated Responsible Officer obtaining of a Credit Party having knowledge of such breach and thereof, or (yii) written notice thereof by means of facsimile, regular mail or written notice is delivered in person (or telephonic notice thereof confirmed in writing) having been given to the Company Borrower or such Credit Party by the Agent or the Majority Banks;any Lender; or
(df) an event of default shall occur under any Contractual Obligation of the Company Borrower or any Material Subsidiary shall: other Credit Party (other than this Agreement, the other Loan Documents and the Revolving Loan Documents), and such event of default (i) fail involves the failure to pay make any Debt payment (other than whether or not such payment is blocked pursuant to the payment obligations described in clause (a) above) in excess terms of $50,000,000an intercreditor agreement or otherwise), or any whether of principal, interest or premium thereonotherwise, when and whether due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) otherwise and such failure shall continue continues after the applicable grace or notice period, if any, specified in the instrument document relating thereto, in respect of any Indebtedness (other than the Obligations and the Indebtedness under the Revolving Loan Documents) of such Person in an aggregate original principal amount exceeding the Threshold Amount, or agreement relating (ii) causes (or permits any holder of such Indebtedness or a trustee to cause) such DebtIndebtedness, or a portion thereof, in an aggregate original principal amount exceeding the Threshold Amount become due prior to its stated maturity or prior to its regularly scheduled date of payment; or
(g) there shall be commenced against the Borrower or any other Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that remains unstayed, undismissed or unbonded for sixty (60) consecutive days; or
(h) a case or proceeding shall have been commenced involuntarily against Borrower or any other Credit Party in a court having competent jurisdiction seeking a decree or order: (i) under any Debtor Relief Law, and seeking either (x) the appointment of a custodian, receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor or sequestrator (or similar official) for such Person or of any substantial part of its properties, or (y) the reorganization or winding up or liquidation of the affairs of any such Person, and such case or proceeding shall remain undismissed, unstayed or unbonded for sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such case or proceeding; or (ii) fail invalidating or denying any such Person’s right, power, or competence to enter into or perform or observe any term, covenant or condition on of its part to be performed or observed obligations under any agreement Loan Document or instrument relating invalidating or denying the validity or enforceability of this Agreement or any other Loan Document or any action taken hereunder or thereunder; or
(i) Borrower or any other Credit Party shall (i) commence any case, proceeding or other action under any Debtor Relief Law, seeking to have an order for relief entered with respect to it or seeking appointment of a custodian, receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor or sequestrator (or similar official) for it or any such Debtsubstantial part of its properties, when required to be performed or observed(ii) make a general assignment for the benefit of creditors, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) consent to or take any such Debt shall be declared to be due and payableaction in furtherance of, or, indicating its consent to, approval of, or required to be prepaid acquiescence in, any of the acts set forth in paragraph (other than by a regularly scheduled required prepaymenth) of this Section 7.1 or clauses (i) and (ii) of this paragraph (i), in each case in accordance with the terms of such agreement or instrument, prior to the stated maturity thereof; or (iv) generally not, or shall admit in writing its inability to, or shall be generally unable to, pay its debts as such debts become due;; or
(ej) a final judgment or judgments for the Company payment of money in excess of the Threshold Amount in the aggregate shall be rendered against Borrower or any Material Subsidiary: other Credit Party, unless the same shall be (i) shall make an assignment for fully covered by insurance and the benefit issuer(s) of creditorsthe applicable policies have not disclaimed coverage, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding under any bankruptcyvacated, reorganizationstayed, arrangementbonded, readjustment of debt, dissolution paid or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for discharged within a period of sixty (60) consecutive days or morefrom the date of such judgment; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its property; or (v) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty (60) days or more; or (vi) shall take any corporate action to authorize any of the actions set forth above in this clause (e);or
(f) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order or (ii) there shall be any period of more than thirty (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;
(gk) any material provision of any Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; or the Company shall so assert in writing;
(h) any Plan Termination Event with respect to a Plan shall have occurred, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) a Change in Control shall occur; or
(j) any Collateral Loan Document shall for any reason fail (other than upon satisfaction in full of the Obligations), cease to create be valid, binding and enforceable in accordance with its terms, or any Lien granted, or intended by the Loan Documents to be granted, to Agent for the benefit of the Lenders shall cease to be a valid and perfected Lien having the first priority security interest (or a lesser priority if expressly permitted in the Loan Documents, including the Intercreditor Agreement), except to the extent that any portion such loss of perfection or priority results from the failure of the Collateral purported Agent (which failure is not due to any omission or action by Credit Parties) to maintain possession of certificates actually received representing securities pledged hereunder or under the Pledge Agreement or to file Code continuation statements in the applicable jurisdictions; or
(l) a Change of Control shall have occurred; or
(m) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred and are then continuing, could reasonably be covered thereby, except as permitted by the terms of any Credit Document.expected to have Material Adverse Effect; or
(n) [reserved]; or
Appears in 1 contract
Samples: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Events of Default. The occurrence of If any one or more of the following events shall constitute (each, an “Event of Default”) shall occur and be continuing:
(ai) the Company Borrower shall fail to pay (i) any principal of any Advance Loan when due and payable, or in accordance with the terms hereof; or
(ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) Borrower shall fail to pay any interest on any Advance Loan or any fee or Credit Party shall fail to pay any other Obligation amount (other than principal) payable hereunder or under any other Loan Document, within five three (53) Business Days after any such interest or fee or other Obligation amount becomes due and payable;in accordance with the terms hereof or thereof; or
(b) any representation or warranty made or deemed made by any Credit Party herein or on behalf of the Company in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this Agreement or any such other Credit Document or in any certificate, document, report, financial or other written statement furnished at any time pursuant to any Credit Loan Document shall prove to have been incorrect inaccurate in any material respect on or as of the date made or deemed made;made or furnished; provided, that, in each case, such materiality qualifier shall not be applicable with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(c) (i) the Company or any of its Subsidiaries Credit Party shall fail or neglect to perform perform, keep or observe any termof the covenants, covenant promises, agreements, requirements, conditions or agreement other terms or provisions contained in Section 6.3(aSections 7.1(a)(i) (solely with respect to the Companyvalid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 6.10, Article VII or Article VIII9.13 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the Company other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of its Subsidiaries shall fail to comply with Section 6.8(b) the other Loan Documents and such failure under this clause (ii) shall continue breach is not remediable or, if remediable, continues unremedied for five (5) Business Days after the occurrence a period of such breach; or (iii) the Company shall fail to perform or observe any other term, covenant or agreement on its part to be performed or observed in this Agreement or in any other Credit Document and such failure under this clause (iii) shall continue for thirty (30) consecutive days after the earlier to occur of (x) a Designated Officer obtaining knowledge the date on which any officer of any Credit Party becomes aware of such breach and (y) written notice thereof by means the date on which Agent shall have notified any Credit Party of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the Company by the Agent or the Majority Banks;such breach; or
(d) the Company this Agreement or any Material Subsidiary shall: (i) fail to pay other Loan Document shall not be for any Debt (other than the payment obligations described in clause (a) above) in excess of $50,000,000reason, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any agreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared asserted by any Credit Party not to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment)be, in each case full force and effect in all material respects in accordance with its terms or the terms Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such agreement or instrument, prior to the stated maturity thereofjudgment; or
(ivf) any Credit Party shall be dissolved or shall generally notnot pay, or shall be generally unable to pay its debts as such debts become due, or shall admit in writing its inability to, to pay its debts as such debts become due;
(e) the Company generally, or any Material Subsidiary: (i) shall make an a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or petition or apply to any tribunal for the appointment of a custodianseeking liquidation, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding under any bankruptcywinding up, reorganization, arrangement, readjustment adjustment, protection, relief or composition of debt, dissolution it or liquidation law or statute of its debts under any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is enteredDebtor Relief Laws, or which petition, application or proceeding remains undismissed for a period seeking the entry of sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or an order for relief or the appointment of a custodianreceiver, receiver trustee, custodian or trustee other similar official for all it or for any substantial part of its property; or (v) shall suffer property and , in the case of any such custodianshipproceeding filed against a Credit Party, receivership such proceeding shall continue undismissed or trusteeship to continue undischarged unstayed for a period of sixty (60) days or moredays; or (vi) any Credit Party shall take any corporate action to authorize any of the actions set forth above in this clause (ef);; or
(fg) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate any Credit Party shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 when and as the same shall have been commenced by any creditor upon any such judgment or order become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against any period Credit Party any Litigation seeking issuance of more than a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days during which days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) any material provision transfer of any Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; of its property or the Company shall so assert in writing;
(h) incurring of an obligation which may be fraudulent under any Plan Termination Event with respect to a Plan shall have occurredbankruptcy, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (fraudulent transfer or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) a Change in Control shall occurother similar law; or
(j) (i) the termination of, any Collateral Document shall for amendment or other modification in a material and adverse manner as determined by Agents in their discretion of or any reason fail to create default under, any QVC Agreement; (ii) any amendment or other modification in a valid material and perfected first priority security interest adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any portion applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; or
(k) the occurrence of any event with Xxxxxxxxx Xxxxx that results in a material adverse effect on the value of the Collateral purported Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or
(l) any Credit Party shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be covered therebydue and payable, except as permitted by and the terms same shall immediately become due and payable without presentment, demand, protest or notice of any Credit Documentkind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agent.
Appears in 1 contract
1Events of Default. The occurrence of If any one or more of the following events shall constitute (each, an “Event of Default”) shall occur and be continuing:
(ai) the Company Borrower shall fail to pay (i) any principal of any Advance Loan when due and payable, or in accordance with the terms hereof; or
(ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) Borrower shall fail to pay any interest on any Advance Loan or any fee or Credit Party shall fail to pay any other Obligation amount (other than principal) payable hereunder or under any other Loan Document, within five three (53) Business Days after any such interest or fee or other Obligation amount becomes due and payable;in accordance with the terms hereof or thereof; or
(b) any representation or warranty made or deemed made by any Credit Party herein or on behalf of the Company in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this Agreement or any such other Credit Document or in any certificate, document, report, financial or other written statement furnished at any time pursuant to any Credit Loan Document shall prove to have been incorrect inaccurate in any material respect on or as of the date made or deemed made;made or furnished; provided, that, in each case, such materiality qualifier shall not be applicable with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(c) (i) the Company or any of its Subsidiaries Credit Party shall fail or neglect to perform perform, keep or observe any termof the covenants, covenant promises, agreements, requirements, conditions or agreement other terms or provisions contained in Section 6.3(aSections 7.1(a)(i) (solely with respect to the Companyvalid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.23, 7.24, 7.27, 8.1, 8.2, Sections 9.1 through Section 6.10, Article VII or Article VIII9.13 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the Company other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of its Subsidiaries shall fail to comply with Section 6.8(b) the other Loan Documents and such failure under this clause (ii) shall continue breach is not remediable or, if remediable, continues unremedied for five (5) Business Days after the occurrence a period of such breach; or (iii) the Company shall fail to perform or observe any other term, covenant or agreement on its part to be performed or observed in this Agreement or in any other Credit Document and such failure under this clause (iii) shall continue for thirty (30) consecutive days after the earlier to occur of (x) a Designated Officer obtaining knowledge the date on which any officer of any Credit Party becomes aware of such breach and (y) written notice thereof by means the date on which Agent shall have notified any Credit Party of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the Company by the Agent or the Majority Banks;such breach; or
(d) the Company this Agreement or any Material Subsidiary shall: (i) fail to pay other Loan Document shall not be for any Debt (other than the payment obligations described in clause (a) above) in excess of $50,000,000reason, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any agreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared asserted by any Credit Party not to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment)be, in each case full force and effect in all material respects in accordance with its terms or the terms Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability exceeding the Minimum Actionable Amount (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such agreement judgment; or
(f) any Credit Party shall be dissolved or instrumentshall generally not pay, prior or shall be generally unable to the stated maturity thereof; or (iv) generally notpay its debts as such debts become due, or shall admit in writing its inability to, to pay its debts as such debts become due;
(e) the Company generally, or any Material Subsidiary: (i) shall make an a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or petition or apply to any tribunal for the appointment of a custodianseeking liquidation, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding under any bankruptcywinding up, reorganization, arrangement, readjustment adjustment, protection, relief or composition of debt, dissolution it or liquidation law or statute of its debts under any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is enteredDebtor Relief Laws, or which petition, application or proceeding remains undismissed for a period seeking the entry of sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or an order for relief or the appointment of a custodianreceiver, receiver trustee, custodian or trustee other similar official for all it or for any substantial part of its property; or (v) shall suffer property and , in the case of any such custodianshipproceeding filed against a Credit Party, receivership such proceeding shall continue undismissed or trusteeship to continue undischarged unstayed for a period of sixty (60) days or moredays; or (vi) any Credit Party shall take any corporate action to authorize any of the actions set forth above in this clause (ef);; or
(fg) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate any Credit Party shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding the Minimum Actionable Amount when and as the same shall have been commenced by any creditor upon any such judgment or order become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against any period Credit Party any Litigation seeking issuance of more than a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days during which days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) any material provision transfer of any Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; of its property or the Company shall so assert in writing;
(h) incurring of an obligation which may be fraudulent under any Plan Termination Event with respect to a Plan shall have occurredbankruptcy, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (fraudulent transfer or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) a Change in Control shall occurother similar law; or
(j) the termination or expiration of, any Collateral Document amendment or other modification in a material and adverse manner as determined by Agents in their reasonable discretion of or any material default under, any Revenue License or Material Contract; or
(k) [reserved];
(l) any Credit Party shall for any reason fail to create a valid and perfected first priority security interest take or participate in any portion action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the Collateral purported applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be covered therebydue and payable, except as permitted by the terms and terminate any then outstanding Delayed Draw Term Loan A Commitments, in each case without presentment, demand, protest or notice of any Credit Documentkind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable, and any then outstanding Delayed Draw Term Loan A Commitments shall automatically terminate, in each case without any necessary action or notice by Administrative Agent.
Appears in 1 contract
1Events of Default. The occurrence of any of the following events shall constitute an “Event of Default”:
(a) the Company shall fail to pay (i) any principal of any Advance when due and payable, or (ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) any interest on any Advance or any fee or other Obligation payable hereunder within five (5) Business Days after such interest or fee or other Obligation becomes due and payable;
(b) any representation or warranty made by or on behalf of the Company in this Agreement or any other Credit Document or in any certificate, document, report, financial or other written statement furnished at any time pursuant to any Credit Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made;
(c) (i) the Company or any of its Subsidiaries shall fail to perform or observe any term, covenant or agreement contained in Section 6.3(a) (solely with respect to the Company), Section 6.10, Article VII or Article VIII; or (ii) the Company or any of its Subsidiaries shall fail to comply with Section 6.8(b) and such failure under this clause (ii) shall continue for five (5) Business Days after the occurrence of such breach; or (iii) the Company shall fail to perform or observe any other term, covenant or agreement on its part to be performed or observed in this Agreement or in any other Credit Document and such failure under this clause (iii) shall continue for thirty (30) consecutive days after the earlier of (x) a Designated Officer obtaining knowledge of such breach and (y) written notice thereof by means of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the Company by the Agent or the Majority Banks;
(d) the Company or any Material Subsidiary shall: (i) fail to pay any Debt (other than the payment obligations described in clause (a) above) in excess of $50,000,000, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any agreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), in each case in accordance with the terms of such agreement or instrument, prior to the stated maturity thereof; or (iv) generally not, or shall admit in writing its inability to, pay its debts as such debts become due;
(e) the Company or any Material Subsidiary: (i) shall make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief is entered, or which petition, application or proceeding remains undismissed for a period of sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its property; or (v) shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty (60) days or more; or (vi) shall take any corporate action to authorize any of the actions set forth above in this clause (e);
(f) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order or (ii) there shall be any period of more than thirty (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;
(g) any material provision of any Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; or the Company shall so assert in writing;
(h) any Plan Termination Event with respect to a Plan shall have occurred, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) any Bond shall cease to be in full force and effect (other than in connection with the replacement thereof pursuant to any increase of the Commitments in accordance with Section 2.16) or (ii) the Company shall deny that it has any liability or obligation under any Bond or purport to revoke, terminate, rescind or redeem any Bond (other than (x) in accordance with the terms of the Bonds and the Indenture and (y) in connection with the replacement thereof pursuant to any increase of the Commitments in accordance with Section 2.16); or
(j) a Change in Control shall occur; or
(j) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any portion of the Collateral purported to be covered thereby, except as permitted by the terms of any Credit Document.
Appears in 1 contract
