1Events of Default. The occurrence of any of the following shall constitute an Event of Default: (a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or (b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed made; or (c) any Loan Party shall default in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied for a period of 30 days thereafter; or (e) (i) any Group Member (other than any Immaterial Subsidiary) shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; or (ii) any default or event of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000; or (f) (i) any Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member (other than any Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; or (h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or (i) any of the Security Documents shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or (ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or (j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or (k) a Change of Control shall occur; or (l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or (m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or (n) a Material Adverse Effect shall occur.
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 Xxxxxx in accordance with the terms of this Note:
(a) the Borrower shall fail to pay make any amount of principal payment in respect of any Loan Obligations when due in accordance with the terms hereof; and payable or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes declared due in accordance with the terms hereofand payable; or
(b) Borrower shall create or permit any representation or warranty made or deemed made by Lien on any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial Company Intellectual Property or other statement furnished by it at any time under or in connection with this Agreement or any such Collateral, other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed madethan Permitted Liens; or
(c) an event of default shall occur under any Loan Party shall Contract with a value in excess of $100,000 of Borrower (other than this Note or the APM), and such event of default in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) involves the failure to make any payment (whether or not such payment is blocked pursuant to the terms of an intercreditor agreement or otherwise), whether of principal, interest or otherwise, and whether due by scheduled maturity, required prepayment, acceleration, demand or otherwise, in respect of any Indebtedness (other than the Obligations) of such Person in an aggregate amount exceeding $100,000, or (ii) causes (or permits any holder of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied for a period of 30 days thereafter; or
(e) (i) any Group Member (other than any Immaterial Subsidiary) shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating theretoa trustee to cause) such Indebtedness, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness portion thereof to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) regularly scheduled dates of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; or (ii) any default or event of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000payment; or
(f) (id) any Group Member (other than representation or warranty in any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to itLoan Document, or seeking to adjudicate it a bankrupt or insolventin any written statement pursuant thereto, or seeking reorganizationin any report, arrangement, adjustment, winding-up, liquidation, dissolution, composition financial statement or other relief with certificate made or delivered to Lender by Borrower shall be untrue or incorrect in any material respect as of the date when made or deemed made (it being understood and agreed that any representation or warranty which is subject to it or its debts, or any materiality qualifier shall be required to be true and correct in all respects); or
(b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) shall make a general assignment for the benefit of its creditors; or (iie) there shall be commenced against any Group Member (other than Borrower any Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action Proceedings 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 or undismissed for thirty (30) consecutive days; or Borrower shall not have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud its creditors or any of them or made or suffered a transfer of any of its property or the incurring of an obligation that may be fraudulent under any bankruptcy, fraudulent transfer or other similar law; or
(f) a case or proceeding shall have been vacatedcommenced involuntarily against Borrower in a court having competent jurisdiction seeking a decree or order: (i) under the United States Bankruptcy Code or any other applicable federal, dischargedstate or foreign bankruptcy or other similar law, and seeking either (x) the appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or of any substantial part of its properties, or stayed (y) the reorganization or bonded pending appeal within 60 winding up or liquidation of the affairs of any such Person, and such case or proceeding shall remain undismissed or unstayed for sixty (60) consecutive days from or such court shall enter a decree or order granting the entry thereof (provided that, during relief sought in such 60 day period, no Loan shall be advanced case or Letters of Credit issued hereunder)proceeding; or (ivii) invalidating or denying any Group Member Person’s right, power, or competence to enter into or perform any of its obligations under any Loan Document or invalidating or denying the validity or enforceability of this Note or any other Loan Document or any action taken hereunder or thereunder; or
(g) Borrower shall (i) commence any case, proceeding or other than action under any Immaterial Subsidiaryexisting or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it or seeking appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) shall for it or any substantial part of its properties, (ii) make a general assignment for the benefit of creditors, (iii) consent to or take any action in furtherance of, or or, indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause paragraphs (e) or (f) of this Section or clauses (i), ) and (ii) of this paragraph (g), or (iiiiv) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, or shall be generally unable to, pay its debts as they such debts become due; or
(g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof[reserved]; or
(i) any of the Security Documents shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect[reserved]; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert[reserved]; or
(k) a Change of Control shall occurthe APM is terminated in accordance with Article VIII thereof; or
(l) any the Borrower fails to obtain the Requisite Company Vote following three (3) adjournments of the Governmental Approvals necessary for any of Stockholders’ Meeting in order to obtain the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse EffectRequisite Company Vote; or
(m) any Loan Document (including the subordination provisions Borrower shall sell, transfer, license, lease, distribute, transfer, or otherwise dispose of any subordination all or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after substantially all of its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases assets to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity Person, including an affiliate or enforceability subsidiary of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur. Borrower.
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall will constitute an “Event of Default” under this Agreement:
(a) the Borrower shall fail fails to make any payment of principal or interest due and payable under this Agreement or any other Loan Document when such payment is due and payable;
(b) Borrower fails to pay any other charges, fees, expenses or other monetary obligations (other than an amount payable under clause (a) of principal this Section) owing to Bank arising out of or incurred in connection with any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, Document within three (3) Business Days after the date such payment is due and payable;
(c) Borrower fails to perform, comply with or observe any such interest covenant, agreement or undertaking contained in Section 5.1, Section 5.2, Section 5.3, clause (a) of Section 5.8, Section 5.13 or Article 6 of this Agreement;
(d) Borrower fails to perform, comply with or observe any covenant, agreement or undertaking contained in any Loan Document (other amount becomes due than those referred to in accordance with the terms hereof; or
clause (a), (b) or (c) or elsewhere of this Section 7.1) and such failure continues for thirty (30) days after the occurrence thereof;
(e) any representation statement, report, financial statement, or warranty certificate made or deemed delivered by or on behalf of Borrower or any Guarantor (if any) to Bank is not true and correct in all material respect when made by or delivered, or any Loan Party herein or in any other Loan Document or that is contained in any certificatewarranty, document or financial representation or other statement furnished by it at any time under or on behalf of Borrower contained in or made in connection with this Agreement or any such Agreement, the other Loan Document (i) if qualified by materialityDocuments or in any document, shall be incorrect agreement or misleading when made or deemed madeinstrument furnished in compliance with, relating to, or (ii) if not qualified by materialityin reference to this Agreement, shall be incorrect is false, erroneous, or misleading in any material respect when made or deemed made; or;
(cf) any Loan Party Borrower shall default beyond any grace period in the observance payment of principal, premium or performance interest of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) Indebtedness of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document Borrower (other than as provided in paragraphs (a) through (c) of this Section 8.1the Obligations), when and as the same shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise); or if Borrower otherwise defaults under the terms of any such Indebtedness if the effect of such default is to enable the holder of such Indebtedness to accelerate the payment of Borrower’s obligations, which are the subject thereof, prior to the maturity date or prior to the regularly scheduled date of payment;
(g) any final judgment or order exceeding $250,000 for the payment of money which is not fully and unconditionally covered by insurance or for which Borrower has not established a cash or cash equivalent reserve in the full amount of such judgment, shall be rendered against Borrower and such default judgment shall continue unremedied unsatisfied and in effect for a period of 30 thirty (30) consecutive days thereafter; orwithout being vacated, discharged, satisfied or bonded pending appeal;
(e) (ih) any Group Member (other than any Immaterial Subsidiary) non-monetary judgment or order shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligationbe rendered against Borrower that could reasonably be expected, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, either individually or in the aggregate for all such Indebtednessaggregate, exceeds $5,000,000; or (ii) any default or event of default (however designatedto have a Material Adverse Change, beyond the and there shall be a period of gracethirty (30) consecutive days during which a stay of enforcement of such judgment or order, if anyby reason of a pending appeal or otherwise, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or not be in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000effect; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all Borrower or any substantial part of its assetsGuarantor (if any) makes or proposes in writing, or any Group Member (other than any Immaterial Subsidiary) shall make a general an assignment for the benefit of its creditors generally, offers a composition or extension to creditors; , or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding makes or other action of a nature referred to in clause (i) above that (x) results in the entry sends notice of an order for relief intended bulk sale of any business or assets now or hereafter owned or conducted by Borrower or any such adjudication Guarantor, an Insolvency Proceeding or appointment any other action is commenced for the dissolution or liquidation of Borrower, or the commencement of any proceeding to avoid any transaction entered into by Borrower or any Guarantor (yif any), or the commencement of any case or proceeding for reorganization or liquidation of Borrower’s or any Guarantor’s debts under any Debtor Relief Law, whether instituted by or against Borrower or any Guarantor; provided, however, that Borrower or such Guarantor (if any), as applicable, shall have sixty (60) remains undismisseddays to obtain the dismissal or discharge of an Insolvency Proceeding filed against it, undischarged or unbonded for a period of 60 days (provided that, it being understood that during such 60 sixty (60) day period, no Loan shall be advanced Bank may seek adequate protection in any Insolvency Proceeding, or Letters a receiver, liquidator, custodian, trustee or similar official or fiduciary is appointed for Borrower or any Guarantor or for the property of Credit Borrower or any Guarantor;
(j) any execution or distraint process is issued hereunder); or (iii) there shall be commenced against any Group Member property of Borrower or any Guarantor (other than any Immaterial Subsidiaryif any);
(k) any case, proceeding indication or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all evidence is received by Bank that reasonably leads it to believe Borrower or any substantial part Guarantor (if any) may have directly or indirectly been engaged in any type of activity which, would be reasonably likely to result in the forfeiture of any material property of Borrower or any such Guarantor to any governmental entity, federal, state or local or Borrower or any Guarantor ceases any material portion of its assets that results in the entry of an order for any such relief that business operations as presently conducted;
(l) Borrower shall not have been vacatedbecome unable to pay, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member (other than any Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability toto pay, pay or shall fail to pay, its debts as they become due; or;
(gm) there any Lien in favor of Bank shall occur one fail or more ERISA Events cease to be, or shall be asserted by Borrower or any Guarantor (if any) not to be, valid, enforceable and perfected and prior to all other Liens other than Permitted Liens;
(n) Borrower or any Guarantor (if any) conceals, removes or permits to be concealed or removed any part of Borrower’s property with intent to hinder, delay, or defraud any of its creditors or makes or suffers to be made a transfer of any property, which individually is fraudulent under the law of any applicable jurisdiction;
(o) any material provision of the Security Agreement, any Guarantee or any other document relating to Collateral shall for any reason cease to be valid and binding on, or enforceable against, Borrower or any Guarantor (if any), or Borrower or any such Guarantor shall assert in writing or take any action to discontinue or to assert the aggregate results in invalidity or otherwise is associated with liability unenforceability of any Loan Party Document, or any ERISA Affiliate thereof material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans accordance with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; orits terms;
(hp) there is entered against Borrower or any Group Member (other than any Immaterial Subsidiary) (i) one officer, director or more final judgments or orders for the payment owner of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or
(i) any of the Security Documents outstanding Equity Interests of Borrower or any Guarantor (if any) shall ceasebe indicted for a felony offense under state or federal law, for including without limitation any reasonviolation of any anti-money laundering, to be in full force and effect (other than pursuant to the terms thereof)bribery, OFAC or bank fraud, or any Loan Party shall so assertshould Borrower employ an executive officer or manager, or elect a director, who has been convicted of any Lien created by such felony offense, or should any Person become an owner of any of the Security Documents shall cease to be enforceable and outstanding ownership interests of the same effect and priority purported to be created therebyXxxxxxxx who has been indicted or convicted of any such felony offense; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(kq) a Change of in Control shall occur; or
(lr) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or
(m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and License Agreement for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases shall cease to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur. .
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed made; or
(c) any Loan Party shall default in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied for a period of 30 days thereafter; or
(e) (i) any Group Member (other than any Immaterial Subsidiary) shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time events will constitute an Event of Default unlesshereunder: (a) Seller (i) defaults in the payment of any Obligations or (ii) in the performance of any provision hereof or of any other agreement now or hereafter entered into with Purchaser, at such timeor any covenant, one representation or more defaults, events warranty contained herein proves to be false or conditions of the type described fails to remain true in any way, howsoever minor if such default continues for a period of clauses ten (i)(A), 10) days after Seller’s actual knowledge or receipt of written notice thereof; provided that such ten (B), (C), or (D10) of this Section 8.1(e) day period shall have occurred with respect to Indebtedness, the outstanding principal amount (and, not apply in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value(i) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000any default by Seller under Section 12.11 and Section 14.12; or (ii) any default of such covenant or event agreement which is not capable of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Debtor Relief Law seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for being cured at all or any substantial part of its assets, or any Group Member within such ten (other than any Immaterial Subsidiary10) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action seeking issuance which has been the subject of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof prior failure two (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv2) any Group Member (other than any Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 times during the term of this Agreement; (iii) an intentional breach by Seller of any such covenant or there exists an amount agreement; or (iv) the occurrence of unfunded benefit liabilities any event described in any other clause of this Section 17.1, (as defined in Section 4001(a)(18b) Seller or any guarantor of ERISA)the Obligations becomes subject to any debtor-relief proceedings, individually (c) any such guarantor fails to perform or in the aggregate for all Pension Plans (excluding for purposes observe any of such computation Guarantor’s obligations to Purchaser or shall notify Purchaser of its intention to rescind, modify, terminate or revoke any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for guaranty of the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or moreObligations, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees guaranty shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, cease to be in full force and effect for any reason whatever, (other than pursuant d) any involuntary lien, garnishment, attachment or the like shall be issued against or shall attach to the terms Purchased Accounts, the Collateral or any portion thereof and the same is not released within fifteen (15) days; (e) Seller suffers the entry against it of a final judgment for the payment of money in excess of $100,000.00, unless the same is discharged within ten (10) days after the date of entry thereof); (f) Seller shall have a federal, state or other form of tax lien filed against any of its properties, or shall fail to pay any Loan Party shall so assertfederal, state or other form of tax when due, or shall fail to timely file any Lien created by any of the Security Documents shall cease to be enforceable federal or state tax form as and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoinswhen due, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or
(m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur. extensions.
Appears in 1 contract
Samples: Revolving Purchase, Loan and Security Agreement (Unique Logistics International Inc)
1Events of Default. The occurrence of any of the following shall constitute an Event of Default::
(a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; oror
(b) any representation or warranty made or deemed made by any Loan Party or Limited Recourse Pledgor herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or materially misleading when made or deemed mademade (after giving effect to such materiality qualifier), or (ii) if not qualified by materiality, shall be incorrect or materially misleading in any material respect when made or deemed made; or
(c) any (i) Loan Party shall default in the observance or performance of any agreement contained in, Section in Sections 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b6.7(b), Section 6.8(a)6.8, Section 6.10, Section 6.16 6.12, 6.13, or Section 7 of this Agreement or (ii) any Limited Recourse Pledgor shall default in the observance or performance of any agreement or obligation contained in this Agreement or any Limited Recourse Pledge Agreement; oror
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1Section), and such default shall continue unremedied for a period of 30 days thereafter; or
(e) (i1) any Group Member (other than any Immaterial Subsidiary) shall (Ai) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled outstanding in a principal amount of $1,500,000 or original due date with respect theretomore; or (Bii) default in making any payment of any interest, fees, costs or expenses interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (Ciii) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (Div) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1x) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2y) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay purchase or redeem or make an offer to purchase, purchase or redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses clause (i)(Ai), (Bii), (Ciii), or (Div) of this Section 8.1(eparagraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(Ai), (Bii), (Ciii), or and (Div) of this Section 8.1(eparagraph (e) shall have occurred with respect to Indebtedness, Indebtedness the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, Agreements the Swap Termination Value) of which, individually or in the aggregate for of all such Indebtedness, exceeds in the aggregate $5,000,0001,500,000; or (ii2) any default or event of default (however designated, beyond the period of grace, if any, ) shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually Member; or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall commence any case, proceeding or other action (a) under the Bankruptcy Code or any Debtor Relief Law other existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action of a nature referred to in clause (i) above that (xa) results in the entry of an order for relief or any such adjudication or appointment or (yb) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)days; or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)thereof; or (iv) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; oror
(g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 1,5000,000 during the term of this Agreement; or there exists exists, an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,0001,500,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 1,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 30 days from the entry thereof; or
(i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or the guarantee in any Limited Recourse Pledgor Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or Limited Recourse Pledgor shall so assert; or
(j) (i) any of the Security Documents or Limited Recourse Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party or Limited Recourse Pledgor shall so assert, or any Lien created by any of the Security Documents or the Limited Recourse Pledge Agreements shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing each case with respect to Collateral or assets pledged under any applications for renewal Limited Recourse Pledge Agreement with a fair market value in excess of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or
(m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect$500,000; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur.
Appears in 1 contract
Samples: Credit Agreement (Enfusion, Inc.)
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party or Limited Recourse Pledgor herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or materially misleading when made or deemed mademade (after giving effect to such materiality qualifier), or (ii) if not qualified by materiality, shall be incorrect or materially misleading in any material respect when made or deemed made; or
(c) any (i) Loan Party shall default in the observance or performance of any agreement contained in, Section in Sections 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b6.7(b), Section 6.8(a)6.8, Section 6.10, Section 6.16 6.12, 6.13, or Section 7 of this Agreement or (ii) any Limited Recourse Pledgor shall default in the observance or performance of any agreement or obligation contained in this Agreement or any Limited Recourse Pledge Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1Section), and such default shall continue unremedied for a period of 30 days thereafter; or
(e) (i1) any Group Member (other than any Immaterial Subsidiary) shall (Ai) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled outstanding in a principal amount of $1,500,000 or original due date with respect theretomore; or (Bii) default in making any payment of any interest, fees, costs or expenses interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (Ciii) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (Div) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1x) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2y) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay purchase or redeem or make an offer to purchase, purchase or redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses clause (i)(Ai), (Bii), (Ciii), or (Div) of this Section 8.1(eparagraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(Ai), (Bii), (Ciii), or and (Div) of this Section 8.1(eparagraph (e) shall have occurred with respect to Indebtedness, Indebtedness the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, Agreements the Swap Termination Value) of which, individually or in the aggregate for of all such Indebtedness, exceeds in the aggregate $5,000,0001,500,000; or (ii2) any default or event of default (however designated, beyond the period of grace, if any, ) shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000Member; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall commence any case, proceeding or other action (a) under the Bankruptcy Code or any Debtor Relief Law other existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action of a nature referred to in clause (i) above that (xa) results in the entry of an order for relief or any such adjudication or appointment or (yb) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)days; or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)thereof; or (iv) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 1,5000,000 during the term of this Agreement; or there exists exists, an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,0001,500,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 1,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 30 days from the entry thereof; or
(i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or the guarantee in any Limited Recourse Pledgor Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or Limited Recourse Pledgor shall so assert; or
(j) (i) any of the Security Documents or Limited Recourse Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party or Limited Recourse Pledgor shall so assert, or any Lien created by any of the Security Documents or the Limited Recourse Pledge Agreements shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing each case with respect to Collateral or assets pledged under any applications for renewal Limited Recourse Pledge Agreement with a fair market value in excess of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect$500,000; or
(m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur.
Appears in 1 contract
Samples: Credit Agreement (Enfusion, Inc.)
1Events of Default. . The occurrence of any of the following shall constitute an Event of Default:
(a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days days after any such interest or other amount becomes due in accordance with the terms hereof; provided that any non-payment of principal, interest or other amounts resulting from the Borrower’s good faith payment of an invoice received from the Administrative Agent in a lesser amount or with the incorrect payment date shall not constitute an Event of Default, so long as, in the case of payment in a lesser amount, within three (3) days’ of notice to the Borrower from the Administrative Agent of the corrected invoice amount, the Borrower pays the amount of the prior underpayment; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial certificate or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading prove to have been inaccurate in any material respect when on or as of the date made or deemed mademade (or if any representation or warranty is expressly stated to have been made as of a specific date, inaccurate in any material respect as of such specific date); oror
(c) any Loan Party shall default in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or in Section 7 of this AgreementAgreement (provided that, with respect to Section 7.1 thereof, such default shall be subject to the last sentence of Section 7.1(c)), (ii) in Section 6.7(a) or (iii) in Section 6.4(a)(i) (solely with respect to the Borrower); oror
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied or unwaived for a period of 30 thirty (30) days thereafterafter the earlier of (A) the date on which a Senior Officer of the Borrower becomes aware of such failure and (B) the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent or the Required Lenders; oror
(e) (i) any Group Member (other than any Immaterial Subsidiary) shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date and beyond the period of grace, if any, with respect thereto; (Bii) any Group Member shall default in making any payment of any interest, fees, costs or expenses interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (Ciii) default in making any payment or delivery there occurs under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided an Early Termination Date (as defined in such Swap Agreement) resulting from (A) any event of default under such Swap Agreement as to which a Loan Party or any Subsidiary thereof is the Defaulting, Party (as defined in such Swap Agreement) or (B) any Termination Event (as so defined) under such Swap Agreement as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined); or (Div) any Group Member shall default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, after giving effect to any applicable grace period, the effect of which default or other event or condition is to (1x) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, holder or beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2y) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay purchase or redeem or make an offer to purchase, purchase or redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, that a default, event or condition described in clauses clause (i)(Ai), (Bii), (C), iii) or (Div) of this Section 8.1(eparagraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(Ai), (Bii), (C), iii) or (Div) of this Section 8.1(eparagraph (e) shall have occurred and be continuing with respect to Indebtedness, Indebtedness the outstanding principal amount (and, of which exceeds $7,500,000 in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000aggregate; or (ii) any default or event of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Debtor Relief Law existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (xa) results in the entry of an order for relief or any such adjudication or appointment appointment, which order is not stayed or other similar relief is not granted under applicable state or federal law; or (yb) remains undismissed, undischarged or unbonded for a period of 60 days sixty (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)60) days; or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 sixty (60) days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)thereof; or (iv) any Group Member (other than any Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), ) or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; oror
(g) there (i) any Person shall occur one or more ERISA Events which individually or engage in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities non-exempt “prohibited transaction” (as defined in Section 4001(a)(18406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any failure to satisfy the minimum funding standards under the Pension Funding Rules, whether or not waived in accordance with the Pension Funding Rules, shall exist with respect to any Plan, or any Lien in favor of the PBGC or a Single Employer Plan shall arise on the assets of any Group Member, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA), individually (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any Group Member or any Commonly Controlled Entity shall incur any liability in connection with a withdrawal from, or the aggregate for all Pension Plans Insolvency of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (excluding for purposes of i) through (vi) above, such computation any Pension Plans event or condition, together with respect all other such events or conditions, if any, would reasonably be expected to which assets exceed benefit liabilities) which exceeds $5,000,000have a Material Adverse Effect; oror
(h) there is one or more judgments or decrees shall be entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (to the extent not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverageinsurance) of $5,000,000 7,500,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 thirty (30) days from the entry thereof; or
(i) (i) the Guarantee and Collateral Agreement shall, or any other Security Document covering a material portion of the Security Documents Collateral shall (at any time after its execution, delivery and effectiveness), cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof)effect, or any Loan Party which is a party to any such Security Document shall so assertassert in writing, or (ii) any Lien created by any of the Security Documents shall cease to be enforceable in accordance with its terms and of the same effect and priority purported to be created therebythereby with respect to any material portion of the Collateral (other than in connection with any termination of such Lien in respect of any Collateral as permitted hereby or by any Security Document); or
(ii) any court order enjoinsother than, restrains or prevents a Loan Party from conducting all in each case, pursuant to the terms hereof or any material part of its business that has, the Security Documents or could reasonably be expected to have individually as a direct result of actions by the Administrative Agent or in the aggregate, a Material Adverse EffectLenders; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assertassert in writing other than in each case pursuant to its terms or as a direct result of actions or failure to act by the Administrative Agent or Lenders; oror
(k) a Change of Control shall occur; oror
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or
(m) any Loan Document (including the subordination provisions of any subordination agreement, the Intercreditor Agreement or intercreditor any other agreement or instrument governing any Subordinated Indebtedness) not otherwise referenced Indebtedness or Indebtedness described in Section 8.1(i7.2(t) or (j), at any time after its execution and delivery and shall for any reason other than as expressly permitted hereunder be revoked or thereunder invalidated, or the Discharge of Obligations, ceases otherwise cease to be in full force and effect; , or any Loan Party or any other Person contests holder of such Indebtedness shall contest in any manner writing the validity or enforceability of any Loan Document; thereof or any Loan Party denies deny in writing that it has any further liability or obligation under any Loan Document to which it is a partythereunder, or purports to revoke, terminate the Obligations or rescind the Liens securing the Obligations for any reason shall not have the priority contemplated by this Agreement or any such Loan Document; or
(n) a Material Adverse Effect shall occursubordination agreement, the Intercreditor Agreement or any other agreement or instrument governing any Subordinated Indebtedness or Indebtedness described in Section 7.2(t).
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) the Borrower shall fail to pay any amount of principal If default occurs in payment when due of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other principal amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; orthis Debenture.
(b) If default occurs in payment when due of any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificateinterest, document or financial fees or other statement furnished amounts payable under this Debenture and remains unremedied for a period of five Business Days after the receipt by it at any time under or in connection with this Agreement or any the Corporation of notice of such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed made; ordefault.
(c) any Loan Party shall If default occurs in the observance or performance of any agreement contained in, Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance payment or performance of any other agreement contained in this Agreement Obligation (whether arising herein or any other Loan Document (other than as provided in paragraphs (aotherwise) through (c) of this Section 8.1), and such default shall continue remains unremedied for a period of 30 sixty days thereafter; orafter the receipt by the Corporation of notice of such default.
(d) If default occurs in performance of any other covenant of the Corporation or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default.
(e) (i) any Group Member (other than any Immaterial Subsidiary) shall (A) If an event of default occurs in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to obligation in favour of any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, Person from whom the Corporation or any other event shall occur or condition exist, the effect Guarantor has borrowed in excess of $250,000 which default or other event or condition is to (1) cause, or to permit would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or beneficiary of, or, waived in writing within sixty days of the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf occurrence of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; or (ii) any default or event of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000; or.
(f) (i) If the Corporation or any Group Member (other than Guarantor commits an act of bankruptcy or becomes insolvent within the meaning of any Immaterial Subsidiary) shall commence any case, proceeding bankruptcy or insolvency legislation applicable to it or a petition or other action process for the bankruptcy of the Corporation or any Guarantor is filed or instituted and remains undismissed or unstayed for a period of sixty days or any of the relief sought in such proceeding (a) under any Debtor Relief Law seeking to have including the entry of an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to against it or its debts, or (b) seeking the appointment of a receiver, trustee, custodian, conservator custodian or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiaryproperty) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member (other than any Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; oroccur.
(g) there shall occur one If any act, matter or more ERISA Events which individually or in the aggregate results in or otherwise thing is associated with liability of any Loan Party done toward, or any ERISA Affiliate thereof in excess action or proceeding is launched or taken to terminate the corporate existence of $5,000,000 during the term Corporation, or any Guarantor, whether by winding‒up, surrender of this Agreement; charter or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; orotherwise.
(h) there is entered against If the Corporation or any Group Member (other than Guarantor ceases to carry on its business or makes or proposes to make any Immaterial Subsidiary) sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
(i) one If any proposal is made or more final judgments any petition is filed by or orders against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) excess of $5,000,000 250,000 shall be rendered against the Corporation or more, or any Guarantor and either (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (Ai) enforcement proceedings are shall have been commenced by any creditor upon such judgment or order, or (Bii) all there shall be any period of sixty consecutive days during which a stay of enforcement of such judgments judgment or decrees order, by reason of a pending appeal or otherwise, shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; orbe in effect.
(in) If any of the Security Documents shall cease, for any reason, to action is taken or power or right be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created exercised by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to Body which would have a Material Adverse Effect; or.
(mo) If any Loan Document (including representation or warranty made by the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; Corporation or any Loan Party Guarantor herein or in any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document Instrument to which it is a partyparty or in any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or purports to revokeprospects of the Corporation or any Guarantor which, terminate or rescind any such Loan Document; or
(n) in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect shall occurEffect. LEGAL*52823942.10
Appears in 1 contract
1Events of Default. The occurrence of If any of the following events shall constitute an Event of Defaultoccur and be continuing:
(a) the The Borrower shall fail to pay when due any amount of principal of any Loan when due in accordance with the terms hereof; Note, or the Borrower shall fail to pay within five (5) days after the date when due any amount of interest on any Loaninterest, Fees or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereofhereunder; or
(b) any Any representation or warranty made or deemed made by the Borrower or any Loan Party Guarantor herein or in any other Loan Document or that which is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be prove to have been incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when on or as of the date made or deemed made; or
(c) any Loan Party The Borrower shall default in the observance or performance of any agreement contained in, in Section 5.3, 5.12 or in Section 6.1, 6 or any representation or warranty contained in Section 6.2, clause (i) 3.21 is or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 becomes false or Section 7 of this Agreementmisleading at any time; or
(d) The Borrower or any Loan Party Guarantor shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a), (b) through or (c) of this Section 8.1)7.1) or any other Loan Document, and such default shall continue unremedied for a period of 30 thirty (30) days thereafterafter notice of such default is given by the Agent; or
(e) One or more judgments or decrees shall be entered against the Borrower or any Guarantor involving in the aggregate a liability (not paid or fully covered by insurance) of $10,000,000 or more and all such judgments or decrees shall not have been vacated, discharged, settled, satisfied or paid, or stayed or bonded pending appeal, within thirty (30) days from the entry thereof; or
(f) The Borrower shall (i) default in the payment of any Group Member amount due under any Debt of the Borrower in excess of $10,000,000 in the aggregate (other than any Immaterial Subsidiary) shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligationthe Notes), but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness Debt was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (Dii) default in the observance or performance of any other agreement or condition relating to contained in any such Indebtedness Debt or contained in any instrument or agreement evidencing, securing or relating theretothereto beyond any applicable notice and grace period, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or holders or beneficiary of, or, in the case or beneficiaries of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness Debt (or a trustee or agent on behalf of such holder, beneficiary, holder or counterpartyholders or beneficiary or beneficiaries) to cause, with the giving of notice if required, cause such Indebtedness Debt to become due and payable prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) Debt is declared to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness due and payable prior to its stated maturity; provided that, maturity unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described declaration referred to in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; or subparagraph (ii) is waived or cured to the satisfaction of such other party as demonstrated to the satisfaction of the Agent by the Borrower prior to the Agent taking any default or event action under Section 7.2 in respect of default (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000occurrence; or
(f) (i) The Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor shall commence any case, proceeding or other action (aA) under any Debtor Relief Law existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-upwinding‑up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (bB) seeking appointment of a receiver, trustee, custodian, conservator custodian or other similar official for it or for all or any substantial part of its assets, or the Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor any case, proceeding or other action of a nature referred to in clause (i) above that which (xA) results in the entry of an order for relief or any such adjudication or appointment or (yB) remains undismissed, undischarged or unbonded for a period of 60 days sixty (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)60) days; or (iii) there shall be commenced against the Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process on a claim in excess of $10,000,000 against all or any substantial part of its assets that which results in the entry of an order for any such relief that which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 sixty (60) days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)thereof; or (iv) the Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Group Member (other than any Immaterial Subsidiary) Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(gi) there Any Person shall occur one or more ERISA Events which individually or engage in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or there exists an amount of unfunded benefit liabilities “prohibited transaction” (as defined in Section 4001(a)(18406 of ERISA or Section 4975 of the Code) of ERISA)involving any Plan, individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, adjusted target attainment percentage (Awithin the meaning of Section 436(j)(2) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(iiCode) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal Single Employer Plan maintained by the Borrower or Commonly Controlled Entity is certified by the Single Employer Plan’s actuary to be less than eighty percent (80%) or deemed by operation of any Section 436 of the Governmental Approvals Code in the absence of such certification to be less than eighty percent (80%), (iii) a Reportable Event shall occur with respect to, or that could proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or institution of proceedings is, in the reasonable opinion of the Required Banks, likely to result in the Governmental Authority taking any termination by action of the actions described PBGC or any court of such Single Employer Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan, if any, shall terminate for purposes of Title IV of ERISA, or (v) the Borrower or a Commonly Controlled Entity should completely or partially withdraw from a Multiemployer Plan; and in clause each case in clauses (i) through (v) above, and such decision event or condition, together with all other such revocationevents or conditions, rescissionif any, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect; or
(mi) Any change in control of the Borrower shall occur (as used herein, the term “change in control” means either (A) any Loan Document (including the subordination provisions change in ownership of any subordination class of stock or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced capital stock generally of the Borrower which would result in Section 8.1(i) a change or transfer in the power to control the election of a majority of the board of directors or in other indicia of majority voting control to persons or entities other than those persons who have such majority voting control on the Closing Date or (jB) a decrease in such persons’ right to vote at shareholders’ meetings to an aggregate level less than 51%), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur.
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party or Limited Recourse Pledgor herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or materially misleading when made or deemed mademade (after giving effect to such materiality qualifier), or (ii) if not qualified by materiality, shall be incorrect or materially misleading in any material respect when made or deemed made; or
(c) any (i) Loan Party shall default in the observance or performance of any agreement contained in, Section in Sections 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b6.7(b), Section 6.8(a)6.8, Section 6.10, Section 6.16 6.12, 6.13, or Section 7 of this Agreement or (ii) any Limited Recourse Pledgor shall default in the observance or performance of any agreement or obligation contained in this Agreement or any Limited Recourse Pledge Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1Section), and such default shall continue unremedied for a period of 30 days thereafter; or
(e) (i1) any Group Member (other than any Immaterial Subsidiary) shall (Ai) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled outstanding in a principal amount of $1,500,000 or original due date with respect theretomore; or (Bii) default in making any payment of any interest, fees, costs or expenses interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (Ciii) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (Div) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1x) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2y) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay purchase or redeem or make an offer to purchase, purchase or redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses clause (i)(Ai), (Bii), (Ciii), or (Div) of this Section 8.1(eparagraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(Ai), (Bii), (Ciii), or and (Div) of this Section 8.1(eparagraph (e) shall have occurred with respect to Indebtedness, Indebtedness the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, Agreements the Swap Termination Value) of which, individually or in the aggregate for of all such Indebtedness, exceeds in the aggregate $5,000,0001,500,000; or (ii2) any default or event of default (however designated, beyond the period of grace, if any, ) shall occur with respect to any Subordinated Indebtedness of any Group Member of which, individually or in the aggregate for all such Subordinated Indebtedness, exceeds $1,000,000Member; or
(f) (i) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall commence any case, proceeding or other action (a) under the Bankruptcy Code or any Debtor Relief Law other existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action of a nature referred to in clause (i) above that (xa) results in the entry of an order for relief or any such adjudication or appointment or (yb) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)days; or (iii) there shall be commenced against any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder)thereof; or (iv) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) or Limited Recourse Pledgor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any Loan Party or any ERISA Affiliate thereof in excess of $5,000,000 1,5000,000 during the term of this Agreement; or there exists exists, an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities) which exceeds $5,000,0001,500,000; or
(h) there is entered against any Group Member (other than any Immaterial Subsidiary) (i) one or more final judgments or orders for the payment of money involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 1,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 30 days from the entry thereof; or
(i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or the guarantee in any Limited Recourse Pledgor Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or Limited Recourse Pledgor shall so assert; or
(j) (i) any of the Security Documents or Limited Recourse Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party or Limited Recourse Pledgor shall so assert, or any Lien created by any of the Security Documents or the Limited Recourse Pledge Agreements shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) a Change of Control shall occur; or
(l) any of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the ordinary course for a full term that has, or could reasonably be expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing each case with respect to Collateral or assets pledged under any applications for renewal Limited Recourse Pledge Agreement with a fair market value in excess of any of the Governmental Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect$500,000; or
(m) any Loan Document (including the subordination provisions of any subordination or intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Discharge of Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party, or purports to revoke, terminate or rescind any such Loan Document; or
(n) a Material Adverse Effect shall occur.
Appears in 1 contract
Samples: Credit Agreement (Enfusion, Inc.)
