Defaults. The occurrence of any one or more of the following events shall constitute a Default: 7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made. 7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due. 7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement. 7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach. 7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due. 7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7. 7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days. 7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies. 7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. 7.10. Any Change in Control shall occur. 7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000. 7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000. 7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith. 7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document) 7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 4 contracts
Samples: Five Year Revolving Credit Agreement (United Stationers Inc), Five Year Revolving Credit Agreement (United Stationers Inc), Five Year Revolving Credit Agreement (United Stationers Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Guarantors to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed and, with respect to any matter which is reasonably capable of being cured, Borrower or such Guarantor, as applicable, shall have failed to cure the occurrence causing the representation or warranty to be materially false within thirty (30) days after notice thereof by Administrative Agent to Borrower.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, or (ii) any Reimbursement Obligation Obligation, interest upon any Loan, any Unused Fee or LC Fee within one Business Day after the same becomes five (5) days of when due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligation under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation becomes written notice (which may include the invoice therefor) from Administrative Agent that the same is due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections covenants set forth in (a) Section 6.19 (other than as provided in Section 6.19(d)), (b) Section 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or (c) Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.36.7(c), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (i) any Senior Officer becoming aware of any such breach and (ii) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary Guarantor to pay when due any payment of principal or interest or any other material amount in respect of any Material Indebtedness within fifteen (15) days (or such greater applicable grace period as is provided in the applicable Material Indebtedness Agreement) of the date when due; or the default by the Borrower or any Guarantor in the performance (beyond the greater of thirty (30) days or the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary provided in the performance (beyond the applicable grace period with respect thereto, if anysuch Material Indebtedness) of any material term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, Agreement if the effect of which default, event or condition default is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, cause ten percent (10%) or more of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any ten percent (10%) or more of the Material Indebtedness of the Parent, the Borrower or any Subsidiary Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary Guarantor shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign SubsidiaryGuarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any Guarantor or any Substantial Portion of its their Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and the Guarantors which, when taken together with all other Property of the Borrower and the Guarantors so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary Guarantor shall fail within 60 thirty (30) days to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (net of amounts fully covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Guarantor to enforce any such judgment.
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $5,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that, in full or otherwise fully covered (subject the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, would reasonably be expected to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesresult in a Material Adverse Effect.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.11 Any Change in Control shall occur.
7.11. 7.12 The Parent occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any other member of the Controlled Group shall have been notified by the sponsor terms or provisions of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all any Loan Document (other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notificationthan this Agreement), exceeds $20,000,000which default or breach continues beyond any period of grace therein provided.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. 7.13 Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by any Guarantor to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession any Guarantor shall deny that it has any further liability under any Guaranty to which it is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 4 contracts
Samples: Modification Agreement (Tri Pointe Homes, Inc.), Modification Agreement (Tri Pointe Homes, Inc.), Modification Agreement (Tri Pointe Homes, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made by the Company or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit Extension, or in any certificate or information delivered in writing in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed madeand shall not be remedied within three Business Days after written notice from the Agent.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon on any Revolving Loan or of any Commitment Feefacility fee, LC Fee or any other Obligations payment obligations under any of the Loan Documents within five (5) three Business Days after the same becomes due (unless such interest, fee or other Obligation becomes dueLoan has been rolled over as provided in this Agreement).
7.3. 7.3 The breach by (i) the Parent any Borrower or the Borrower any Guarantor of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of 6.19 which is not remedied within three Business Days after written notice from the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementAgent.
7.4. 7.4 The breach by the any Borrower or any Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 15 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Management Obligations (valued by reference to the amount of the Net Xxxx-to-Market Exposure) aggregating in excess of $15,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, in the case of any such default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolventinsolvent entity, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and could reasonably be expected to have a Material Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect15,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due after the expiration of any applicable grace period an amount or amounts aggregating in excess of $1,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $1,000,000 (a “Material Plan”) shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or PBGC shall institute proceedings under which it is likely to prevail under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the date of such notification)PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group to incur a current payment obligation in excess of $1,000,000.
7.11 The occurrence of any Change in Control.
7.12 Any Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or assert the invalidity or unenforceability of any Guaranty or any Guarantor denies that it has any further liability under any Guaranty to which it is a party, or gives notice to such effect.
7.13 Any Collateral Document shall for any reason (taken other than solely as the result of an act or omission of the Agent or a wholeLender) fail to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increasedcreate a valid and perfected first priority security interest, subject to the Intercreditor Agreement, in any Collateral purported to be covered thereby, except as permitted by the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years terms of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower this Agreement or any Subsidiary shall (i) be the subject of Collateral Document, or, due to any proceeding or investigation pertaining to the release action by the Parent, the Borrower Company or any Subsidiary or of its Subsidiaries not consented to by the Required Lenders, any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Lenders to discontinue or to assert that its obligations thereunder are discontinuedthe invalidity or unenforceability of any Collateral Document, invalid or unenforceable the Company or any Guarantor shall fail to comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided for any reason (other than those enumerated in the first parenthetical above); the Liens created by the applicable Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 4 contracts
Samples: Credit Agreement (Kelly Services Inc), Credit Agreement (Kelly Services Inc), Credit Agreement (Kelly Services Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries (and as it relates to Excluded Subsidiaries, solely with respect to the representations or warranties made pursuant to Section 5.13, Section 5.17, Section 5.21(b) and Section 5.25) to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, due or (ii) any Reimbursement Obligation Obligation, interest upon any Loan, any commitment fee or LC Fee within one Business Day five (5) days after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligation under any of the Loan Documents within five ten (510) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or 6.1 (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3Financial Reporting), 4.1.3 or clauses Section 6.2(a) (iConduct of Business), 6.4 (Financial Covenants), 6.7 (Use of Proceeds), 6.9 (Sanctions; Anti-Money Laundering Compliance), 6.10 (Liens), 6.11 (Merger), 6.12 (Secured Indebtedness), 6.13 (Guarantees and Other Contingent Obligations), 6.14 (Disposition of Property), 6.15 (Restricted Payments), 6.16 (Affiliates) or 6.17 (ii) of Section 4.1.4 of the Security AgreementInvestments).
7.4. The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (i) the Borrower becoming aware of any such breach and (ii) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. (i) Failure of the Parent, the Borrower or any Subsidiary Guarantor to pay when due any Material Indebtedness (payment beyond the any applicable grace period with (whether of principal, interest or any other amount) in respect theretoof any Material Indebtedness, if any); or (ii) the default by the Parent, the Borrower or any Subsidiary Guarantor in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition under this clause (ii) is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; , or (iii) any portion of Material Indebtedness of the Parent, the Borrower or any Subsidiary Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7, or (vii) the Borrower or any Guarantor shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign SubsidiaryGuarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any Guarantor or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and the Guarantors which, when taken together with all other Property of the Borrower and the Guarantors so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary Guarantor shall fail within 60 sixty (60) days to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Guarantor to enforce any such judgment; provided, that this Section 7.9 shall not apply to any judgment for which the Borrower is fully insured (bthrough insurance policies or self-insurance reserves).
(i) paid in full With respect to a Plan, the Borrower or otherwise fully covered (an ERISA Affiliate is subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) lien in excess of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, $50,000,000 pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member 430(k) of the Controlled Group as withdrawal liability (determined as Code or Section 303(k) of the date of such notification), exceeds $20,000,000.
7.12. The Parent ERISA or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, whichan ERISA Event shall have occurred that, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor opinion of the AgentRequired Lenders, having the priority contemplated by the Collateral Documents (except when taken together with all other ERISA Events that have occurred, could reasonably be expected to the extent such Liens have been released result in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers a material liability in respect excess of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities50,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Andersons, Inc.), Credit Agreement (Andersons, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one five Business Day Days after written notice from the Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.
7.4. 7.4 The breach by the any Borrower or Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $15,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to have a Material Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or 15,000,000 in aggregate amount for the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse EffectCompany and its Subsidiaries, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $15,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $15,000,000 (a "Material Plan") shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of the date of such notification)ERISA) in respect of, exceeds $20,000,000.
7.12. The Parent or to cause a trustee to be appointed to administer any other member of the Controlled Group Material Plan; or a condition shall have been notified by the sponsor of exist that could reasonably be expected to result in PBGC obtaining a Multiemployer decree adjudicating that any Material Plan that such Multiemployer Plan is in reorganization must be terminated; or is being terminatedthere shall occur a complete or partial withdrawal from, or a default, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation for withdrawal liability in reorganization or being terminated have been or will be increased, excess of $15,000,000 in the aggregate, over the amounts contributed to such Multiemployer Plans aggregate amount for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000Controlled Group.
7.13. 7.11 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environmentHazardous Substance, or (ii) violate any violation of any applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.12 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur Change of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesControl.
Appears in 2 contracts
Samples: Loan Agreement (Diebold Inc), Loan Agreement (Diebold Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extensionother Loan Document, any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (ia) any principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iiib) any interest upon any Revolving Loan Note or any Commitment Fee, LC Fee commitment fee or other Obligations fee or obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, Section 6.3(a) or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, 6.15 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.6.17 ----------- -------------- ------------- ---- ------------ through 6.21. ----
7.4. The breach by either of the Borrower Borrowers (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or ----------- --- --- provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within twenty (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3020) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, The default by the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Funded Indebtedness aggregating in excess of $10,000,000 was created or is outstandinggoverned, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Funded Indebtedness or the lender(s) under any such agreement to cause, such Material Funded Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Funded Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Significant Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any ----------- appointment or proceeding described in Section 7.77.7 or (g) become unable to pay, not pay, or ----------- admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its Significant Subsidiaries or any substantial portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower -------------- or any Material Foreign Subsidiary of its Significant Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 2,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary multiple judgments or orders which, individually or for the payment of an aggregate amount in the aggregate, would reasonably be expected to have a Material Adverse Effectexcess of $10,000,000), which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject and as to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policieswhich no enforcement actions have been commenced.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Credit Agreement (Fund American Enterprises Holdings Inc), Credit Agreement (Fund American Enterprises Holdings Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (ia) principal of any Revolving Loan when due, (iib) any Reimbursement Obligation within one Business Day after the same becomes due, due or (iiic) interest upon any Revolving Loan or Loan, any Commitment Fee, LC Facility Fee or other Obligations under any of the Loan Documents within five three (53) Business Days days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.1 through 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.27.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after the earlier to occur of (a) written notice from the Administrative Agent or any Lender to the Borrower or (b) an Authorized Officer of the Borrower otherwise become aware of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due; provided that this Section 7.5 shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effectany Debtor Relief Law, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect any Debtor Relief Law or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating Debtor Relief Law or fail to bankruptcy, insolvency file an answer or reorganization or relief other pleading denying the material allegations of debtorsany such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a A receiver, trustee, examiner, liquidator or similar official shall be appointed for such any Credit Party or such any Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and the Subsidiaries which, when taken together with all other Property of the Borrower and the Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary shall fail within 60 30 days to pay, bond or otherwise discharge one or more (ia) judgments or orders for the payment of money in excess of $10,000,000 20,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (excluding the amount of any insurance coverage by insurance companies with the financial ability to pay the same and who have agreed in writing to cover the applicable claim(s)), or (iib) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (ai) stayed on appeal or otherwise being appropriately contested in good faith or (bii) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the ParentBorrower’s or any Subsidiary’s insurance policies.
7.97.10. Any formal step is taken to terminate The Unfunded Liabilities of all Single Employer Plans shall exceed $20,000,000 in the aggregate, or any Reportable Event shall occur in connection with any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.107.11. [Reserved]
7.12. Any Change in Control shall occur.
7.117.13. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00020,000,000 or requires payments exceeding $20,000,000 per annum.
7.127.14. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.137.15. The Parent, the Borrower or any Subsidiary shall (ia) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the indoor or outdoor environment, or (iib) violate any Environmental Law, which, in the case of an event described in clause (ia) or clause (iib), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 (excluding the amount of any insurance coverage by insurance companies with the financial ability to pay the same and who have agreed in writing to cover the applicable claim(s)) or more, which liability is not paid, bonded or otherwise discharged (other than by a Facility LC) within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.147.16. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) Borrower or any Credit Party Subsidiary, or the Borrower or any Subsidiary shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated or any action shall be taken or shall fail to be taken to discontinue or to assert the invalidity or unenforceability of, or which results in the first parenthetical above); the Liens created by the Collateral Documents shall at discontinuation or invalidity or unenforceability of, any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document).
7.157.17. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (ia) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary Borrower or any SPV Affiliate of the Borrower to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 10,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, (b) results in the termination of reinvestments of collections or proceeds of receivables and related assets under the agreements evidencing such Off-Balance Sheet Liabilities, or (iic) causes or otherwise permits the replacement or substitution of the Parent, any Subsidiary Borrower or any SPV Affiliate thereof as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 7.17 shall not apply on any date with respect to (ai) any voluntary request by the Parent, any Subsidiary Borrower or any SPV an Affiliate thereof for an above-described amortization amortization, liquidation, or liquidation termination of reinvestments so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or amortization, liquidation or termination of reinvestments or (bii) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Credit Agreement (Patterson Companies, Inc.), Credit Agreement (Patterson Companies, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Facility Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive, Sections 6.18 through 6.22, inclusive, 6.17 or Section 6.24 6.18; or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of Section 6.1 which is not remedied within five Business Days after written notice from the Agent or any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementLender.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money (except to the extent covered by insurance as to which the insurer has not disclaimed coverage) in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Coachmen Industries Inc), Credit Agreement (Coachmen Industries Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf the Borrower, any of the Parentits Subsidiaries, the Borrower or any Subsidiary Authorized Officer thereof to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.10, Sections 6.18 through 6.226.11, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 6.15 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) relevant Lien secures indebtedness in excess of this Section 7.3$5,000,000), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.18, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.28, 6.29 and 6.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) of (i) Sections 6.12, 6.13, 6.14, 6.15 (to the extent the relevant Lien secures indebtedness not in excess of $5,000,000), 6.16, 6.17, 6.19, 6.26, 6.27 or any other Credit Party of any of the other terms or provisions of this Agreement or (ii) any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any), in each case which is not remedied within thirty (30) days after the earlier to occur of (x) written notice from the Administrative Agent or any Lender to the Borrower or (y) an Authorized Officer otherwise become aware of any such breach.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due any Material Indebtedness (subject to any applicable grace period with respect thereto, if any, set forth in the Material Indebtedness Agreement evidencing such Material Indebtedness) which failure has not been (i) timely cured and (ii) waived in writing by the requisite holders of such Material Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement and such default has not been (x) timely cured and (y) waived in writing by the requisite holders of the Material Indebtedness in respect thereof, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have result in a Material Adverse EffectChange, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full otherwise not covered by a creditworthy insurer or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAindemnitor.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed an amount reasonably expected to result in Control shall occur.
7.11. The Parent a Material Adverse Change, or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) Reportable Event shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, connection with any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesPlan.
Appears in 2 contracts
Samples: Credit Agreement (Headwaters Inc), Credit Agreement (Headwaters Inc)
Defaults. The occurrence of any one or more of the following events (i) in respect of a particular Borrower or, to the extent provided below, any of its Subsidiaries shall constitute a DefaultDefault with respect to such Borrower and (ii) in respect of the Borrowing Subsidiary or, to the extent provided below, any of its Subsidiaries shall also constitute a Default with respect to the Company; provided that, for the avoidance of doubt, a Default or Unmatured Default solely with respect to the Company or any of its subsidiaries (other than the Borrowing Subsidiary and its Subsidiaries) will not constitute a Default or Unmatured Default with respect to the Borrowing Subsidiary if and to the extent no such Default or Unmatured Default otherwise exists with respect to the Borrowing Subsidiary or any of its Subsidiaries:
7.1. Any representation or warranty made or deemed made by or on behalf of such Borrower (including any representation or warranty deemed made by such Borrower as to one of its Subsidiaries) to the ParentLenders, the Borrower or any Subsidiary to the Lenders Issuing Banks or the Agent under in or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall shall, in each case, be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of Such Borrower shall fail to pay (i) principal of any Revolving Loan when due, or (ii) interest on any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Facility Fee or other Obligations Obligation under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the such Borrower of any of the terms or provisions of any of Sections 6.2 or Section 6.1.7 (solely as such provision relates to a Default), 6.2, 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any solely with respect to the preservation of the terms or provisions legal existence of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3Borrower), 4.1.3 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.16.
7.4. The breach by the such Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after the earlier to occur of (i) written notice from the Agent or any Lender to the such Borrower or (ii) a Specified Officer receiving actual knowledge of any other such breachbreach of any of the terms or provisions of this Agreement.
7.5. Failure of the Parent, the such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Subsidiaries or an SPC) to pay when due (after the expiration of any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)or cure periods) any principal of or interest on any of their Material Indebtedness; or the default by the Parent, the such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Subsidiaries or an SPC) in the performance (beyond the applicable grace period with respect thereto, if any) of any other term, provision or condition contained in any agreement under which of their respective Material Indebtedness is outstanding, Agreements or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity due, or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified a mandatory prepaymentprepayment of a corresponding receipt by such Borrower or such Subsidiary (such as from the proceeds of sale, transfer, loss or other disposition of property or the issuance of Indebtedness, equity or other securities)) prior to its stated maturity or, solely with respect to the Company with respect to the Union Electric Credit Agreement, any commitment to lend to such Borrower thereunder to be terminated prior to its stated expiration date; or, as a result of any of the foregoing, any Material Indebtedness of such Borrower or any of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Subsidiaries or an SPC) shall be declared to be due and payable or the remaining outstanding principal amount thereof to be required to be prepaid or repurchased (other than by a regularly scheduled payment or a mandatory prepayment of a corresponding receipt by such Borrower or such Subsidiary (such as from the proceeds of sale, transfer, loss or other disposition of property or the issuance of Indebtedness, equity or other securities)) prior to the stated maturity thereof; or the Parent, the provided that no Default shall occur under this Section 7.5 as a result of (i) any notice of voluntary prepayment delivered by such Borrower or any Subsidiary with respect to any Indebtedness, (ii) any voluntary Disposition of assets by such Borrower or any Subsidiary permitted hereunder as a result of which any Indebtedness secured by such assets is required to be prepaid or (iii) any other transaction which would otherwise be prohibited under any such Material Indebtedness Agreement if and to the extent that concurrently with the consummation of such transaction the Material Indebtedness thereunder is repaid in full with respect to the Borrower or Subsidiary which would otherwise have been in default of such Material Indebtedness Agreement (and, if such Material Indebtedness Agreement is the Union Electric Credit Agreement, the commitments available thereunder to such Borrower or Subsidiary are terminated); and provided further that any “Default” of the Company under the Union Electric Credit Agreement that consists solely of, or termination of any commitment to lend under the Union Electric Credit Agreement that results solely from, a default by the “Borrowing Subsidiary” or any of its “Subsidiaries” thereunder and as defined therein (a “Union Electric Default”) shall not pay, or admit in writing its inability to pay, its debts generally as they become dueconstitute a Default under this Section 7.5.
7.6. Any Credit Party Such Borrower or any of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Foreign Subsidiary Subsidiaries or an SPC) shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any formal corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail within the statutorily mandated time period therefor (or any extension thereof) to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7, or (vii) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of any Credit Party such Borrower or any of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Foreign SubsidiarySubsidiaries or an SPC), a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or such any of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Foreign Subsidiary Subsidiaries or an SPC) or any Substantial Portion of its PropertyProperty or the Property of any of its Subsidiaries (other than a Project Finance Subsidiary or a Non-Material Subsidiary or an SPC), or a proceeding described seeking an order for relief under the Federal bankruptcy laws as now or hereafter in Section 7.6(iv) effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors shall be instituted against any Credit Party such Borrower or any of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Foreign Subsidiary Subsidiaries or an SPC) and such appointment continues shall continue undischarged or such proceeding continues shall continue undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries or Non-Material Subsidiaries or an SPC), shall fail within 60 45 days to pay, bond bond, stay, vacate or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or aggregate (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject net of any proceeding or investigation pertaining to the release amount covered by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (iiinsurance), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Credit Agreement (Ameren Energy Generating Co), Credit Agreement
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders Lenders, the Issuing Banks or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, or (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Facility Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (15) days after the earlier to occur of (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower or (ii) an Authorized Officer otherwise becoming aware of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition existexist (except for, from and after the date of the IP Acquisition, a "Triggering Event" under IP's 11 1/2% Mortgage Bonds due 2010 which does not also cause an event of default thereunder), the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereofthereof (except, from and after the date of the IP Acquisition, in the case of or related to a "Triggering Event" under IP's 11 1/2% Mortgage Bonds due 2010 which does not also cause an event of default thereunder); or the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) shall not pay, or admit in writing its inability to pay, its debts generally as they become due; provided that no Default shall occur under this Section 7.5 as a result of (i) any notice of voluntary prepayment delivered by the Borrower or any Subsidiary with respect to any Indebtedness, or (ii) any voluntary sale of assets by the Borrower or any Subsidiary permitted hereunder as a result of which any Indebtedness secured by such assets is required to be prepaid.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7, or (vii) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries (other than Project Finance Subsidiaries), a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries (other than Project Finance Subsidiaries) which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) shall fail within 60 45 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (net of any amount covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change An ERISA Event shall have occurred that, in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000result in a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Union Electric Co), Five Year Revolving Credit Agreement (Union Electric Co)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the ParentBorrower, the Borrower any Guarantor or any Subsidiary of their Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, any other Loan Document or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feefacility fee, LC Fee or other Obligations obligation under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower or any Guarantor of any of the terms or provisions of any of Sections 6.2 Section 6.2, 6.3, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.4 The breach by the Borrower or any Guarantor (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor to pay when due any Indebtedness aggregating in excess of $50,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership other organizational action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Guarantor or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries or any Guarantor which, when taken together with all other Property of the Borrower and its Subsidiaries or any Guarantor so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect50,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall have a Material Adverse Effect or (b) paid in full or otherwise fully covered (subject be reasonably likely to any applicable deductible) by third-party insurers under the Parent’s have a Material Adverse Effect or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000shall have a Material Adverse Effect or be reasonably likely to have a Material Adverse Effect.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as shall have a whole) Material Adverse Effect or be reasonably likely to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000a Material Adverse Effect.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted a Material Adverse Effect.
7.14 Any Change in liability to Control shall occur.
7.15 The occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the Parent, breach of any of the Borrower terms or provisions of any Subsidiary in an amount equal to $20,000,000 or moreLoan Document (other than this Agreement), which liability is not paid, bonded default or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithbreach continues beyond any period of grace therein provided.
7.14. Any Loan Document 7.16 The obligations of any Guarantor under Article XIII hereof shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationof such obligations, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent any Guarantor shall deny that it has any further liability under such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet LiabilitiesArticle XIII, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 2 contracts
Samples: Credit Agreement (Vectren Corp), Credit Agreement (Vectren Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. (a) Nonpayment of (i) principal of any Revolving Loan when due, (iib) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iiic) nonpayment of interest upon any Revolving Loan or any Commitment Feestated fees set forth herein or in the Fee Letters, LC Fee or other Obligations under any of the Loan Documents in each case, within five (5) Business Days after such interest, fee the same become due and (d) nonpayment of other obligations under this Agreement or other Obligation becomes any of the Loan Documents within thirty (30) days after the same become due.
7.3. (a) The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or Section 6.2, 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (iib) the breach by any Credit Party the Borrower of any of the terms or provisions of Section 6.1.1, 6.1.2, 6.1.3, or 6.1.8 which is not remedied within five (5) Business Days after written notice thereof is given by the Agent or a Lender to the Borrower or (c) the breach by the Borrower of any of the terms or provisions of Section 4.1.1 (to 6.9, 6.10, 6.11, 6.12, 6.13, 6.14 or 6.15 after the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause earlier of (i) of this Section 7.3), 4.1.3 five (5) Business Days after written notice thereof is given by the Agent or clauses (i) or a Lender to the Borrower and (ii) the date an Authorized Officer becomes aware of Section 4.1.4 of the Security Agreementsuch Default.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from thereof is given by the Agent or any a Lender to the Borrower of any other such breachBorrower.
7.5. (a) Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration dateIndebtedness; or any Material Indebtedness of the Parent, (b) the Borrower or any Subsidiary shall be default (after giving effect to any applicable grace period) in the observance or performance of any covenant or agreement relating to such Material Indebtedness and, as a result thereof, such Material Indebtedness is declared to be or becomes due and payable or is required to be prepaid repaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) redeemed prior to the its stated maturity thereof; or the Parent, the maturity.
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith in a timely manner any appointment or proceeding described in Section 7.77.7 or (vii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any of its Material Foreign SubsidiarySubsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such any of its Material Foreign Subsidiary Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any of its Material Foreign Subsidiary Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.8. The Parent, the Borrower 7.8 A judgment or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders other court order for the payment of money in excess of $10,000,000 40,000,000 shall be rendered against the Borrower or any Subsidiary and such judgment or order shall continue without being vacated, discharged, satisfied or stayed or bonded pending appeal for a period of forty-five (or the equivalent thereof in currencies other than Dollars45) days.
7.9 The Unfunded Liabilities of all Single Employer Plans could in the aggregate, aggregate reasonably be expected to result in a Material Adverse Effect or (ii) nonmonetary judgments or orders which, individually or any Reportable Event shall occur in the aggregate, would connection with any Plan that could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.10 Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00065,000,000 or requires payments exceeding $10,000,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00065,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. 7.13 Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created be taken by the Collateral Documents shall at Borrower to assert the invalidity or unenforceability of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Credit Agreement (OGE Enogex Partners L.P.), Credit Agreement (Oge Energy Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extensionother Loan Document, any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (ia) any principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iiib) any interest upon any Revolving Loan Note or any Commitment Fee, LC Fee commitment fee or other Obligations fee or obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, Section 6.3(a) or 6.3 or any of Sections 6.10 through 6.16, inclusive, 6.16 or Sections 6.18 ----------- -------------- -------------------------- ------------- through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.. ----
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of ----------- --- --- this Agreement or any other Loan Document to which it is a party which is not remedied within twenty (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3020) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, The default by the Borrower or any of its Subsidiaries (or, at any time the Borrower is a Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the of Parent, the Borrower or any Subsidiary by Parent) in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Funded Indebtedness aggregating in excess of $2,000,000 ($10,000,000 in the case of Parent) was created or is outstandinggoverned, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Funded Indebtedness or the lender(s) under any such agreement to cause, such Material Funded Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Funded Indebtedness of the ParentBorrower, the Borrower any of its Subsidiaries or any Subsidiary Parent shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Significant Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding ----------- described in Section 7.77.7 or (g) become unable to pay, not pay, or admit in ----------- writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its Significant Subsidiaries or any substantial portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower -------------- or any Material Foreign Subsidiary of its Significant Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary multiple judgments or orders which, individually or for the payment of an aggregate amount in the aggregate, would reasonably be expected to have a Material Adverse Effectexcess of $5,000,000), which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject and as to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policieswhich no enforcement actions have been commenced.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.10. The occurrence of any "default", as defined in any Loan Document (other than this Agreement or the Notes) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement or the Notes), which default or breach continues beyond any period of grace therein provided.
7.11. The Parent Any License of any Insurance Subsidiary (a) shall be revoked by the Governmental Authority which issued such License, or any other member of the Controlled Group action (administrative or judicial) to revoke such License shall have been notified commenced against such Insurance Subsidiary and shall not have been dismissed within thirty (30) days after the commencement thereof, (b) shall be suspended by such Governmental Authority for a period in excess of thirty (30) days or (c) shall not be reissued or renewed by such Governmental Authority upon the sponsor expiration thereof following application for such reissuance or renewal of a Multiemployer Plan that it has incurredsuch Insurance Subsidiary, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required in any case, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000have a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Any Insurance Subsidiary shall (i) be the subject of any proceeding a final non- appealable order imposing a fine by or investigation pertaining to at the release by the Parent, the Borrower or any Subsidiary or any other Person request of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities state insurance regulatory agency as a result of the non-payment violation by such Insurance Subsidiary of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof state's applicable insurance laws or the expiry date of regulations promulgated in connection therewith which could reasonably be expected to have a Material Adverse Effect.
7.13. Any Insurance Subsidiary shall become subject to any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesconservation, or (y) such investors shall require the amortization rehabilitation or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Eventorder, directive or (ii) causes the replacement or substitution of the Parent, mandate issued by any Subsidiary Governmental Authority or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 Insurance Subsidiary shall become subject to any other directive or mandate issued by any Governmental Authority in either case which could reasonably be expected to have a Material Adverse Effect and which is not apply on any date with respect to stayed within thirty (a30) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesdays.
Appears in 2 contracts
Samples: Credit Agreement (Fund American Enterprises Holdings Inc), Credit Agreement (Fund American Enterprises Holdings Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information document delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee fee or other Obligations payment obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.10, Sections 6.18 through 6.226.11, inclusive6.12, 6.13, 6.14, 6.15, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.16.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Debt aggregating in excess of $10,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyDebt”); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness Debt was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement Debt to cause, such Material Indebtedness Debt to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness Debt of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) in excess of $10,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $20,000,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00010,000,000 or requires payments exceeding $10,000,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00010,000,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. 7.14 Any Loan Document Change in Control shall fail to remain occur.
7.15 The representations and warranties set forth in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents Section 5.15 shall at any time not constitute a valid be true and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiescorrect.
Appears in 2 contracts
Samples: Revolving Credit Agreement (DPL Inc), Revolving Credit Agreement (Dayton Power & Light Co)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when duedue or any payment under the Guaranty when required, (ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.3, Sections 6.18 through 6.22, inclusive, or Section 6.24 or 6.4 (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (other than with respect to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3last sentence thereof), 4.1.3 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.17.
7.4. The breach by the Borrower or any Guarantor (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Administrative Agent or any Lender to notifies the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries to pay when due any payment (whether of principal, interest or any other amount) in respect of any Material Indebtedness (beyond and the expiration of any applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event of default shall occur or condition existoccur, the effect of which default, default or event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any portion of Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Article VII Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors (excluding any dissolution or liquidation permitted under Section 6.10 hereof) or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Article VII Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Article VII Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Article VII Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall fail within 60 thirty (30) days to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess (to the extent not fully covered by insurance) of $10,000,000 75,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any of its Article VII Subsidiaries to enforce any such judgment.
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $75,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that, in full or otherwise fully covered (subject the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than have a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect.
7.10. Any Change in Control shall occur.
7.11. The Parent or Except in connection with the release of any other member Guarantor pursuant to the terms of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurredGuaranty, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession is required herein or therein) in favor any Guarantor shall fail to comply with any of the Agentterms or provisions of any Guaranty to which it is a party, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV Guarantor shall deny that it has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 2 contracts
Samples: Credit Agreement (C. H. Robinson Worldwide, Inc.), Credit Agreement (C H Robinson Worldwide Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any other Facility Document, any Letter of Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Facility Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (ia) any principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes when due, or (iiib) any interest upon any Revolving Loan or any Commitment Fee, LC Fee commitment or other Obligations fee or obligations under any of the Loan Facility Documents within five (5) Business Days days after such interest, fee written notice from the Agent or other Obligation becomes dueany Lender.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of 2.8, 6.2, 6.3, Sections 6.10 through 6.16, inclusive6.13, Sections 6.18 6.15 through 6.22, inclusive, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementSections 6.22 through 6.23.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISections 7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days (or in the case of Section 6.14, ten (10) days) after the Borrower has knowledge thereof or written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness aggregating in excess of $2,500,000 when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Indebtedness was created or is outstandinggoverned, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the .
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.7 or (g) become unable to pay, not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 thirty (30) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (ia) final, nonappealable judgments or orders for the payment of money in excess of $10,000,000 2,500,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (iib) final, nonappealable nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. 7.10 Any formal step is taken to terminate Reportable Event shall occur in connection with any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0002,500,000.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0002,500,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (ia) be the subject of to any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (iib) violate any Environmental Law, which, in the case of an event described in clause (ia) or clause (iib), could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any “default”, as defined in any Facility Document (other than this Agreement) or the breach of any of the terms or provisions of any Facility Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16 There shall occur a change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries which has resulted in liability to the Parent, the a Material Adverse Effect.
7.17 The Borrower or any Subsidiary in an amount equal of its Subsidiaries incurs or becomes subject to $20,000,000 action or morethreatened action of any Governmental Authority, including, without limitation, a fine, penalty, cease and desist order or revocation, suspension or limitation of a License, the effect of which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithcould reasonably be expected to have a Material Adverse Effect.
7.14. 7.18 Any Loan Security Document shall for any reason fail to create a valid and perfected, first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of such Security Document, or any Security Document, once executed, shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment unenforceability of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesSecurity Document.
Appears in 2 contracts
Samples: Credit Agreement (Navigators Group Inc), Credit Agreement (Navigators Group Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) three Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower Company of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. The breach by any Loan Party (i) of Section 6.1 which is not remedied within ten days after the Borrower occurrence of such breach or (ii) (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the other terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days thirty days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration datedate (or, in the case of any Receivables Facility Attributable Indebtedness, cause such Indebtedness to amortize or liquidate or terminate the reinvestment of collections or proceeds of receivables); or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof, provided, that the occurrence of any of the foregoing with respect to Receivables Facility Attributed Indebtedness shall not constitute an Event of Default hereunder so long as the aggregate outstanding amount thereof does not exceed the Available Aggregate Revolving Loan Commitment; or the Parent, occurrence of an early termination under any Rate Management Transaction resulting from (i) any event of default under such Rate Management Transaction as to which the Borrower Company or any Subsidiary is the defaulting party or (ii) any termination event as to which the Company or any Subsidiary is an affected party and, in either event, the termination value or other similar obligation owed by the Company or such Subsidiary as a result thereof is in excess of $10,000,000 and remains unpaid; or the Company or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Borrower or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as any Federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as any Federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to Federal, state or foreign bankruptcy, insolvency insolvency, administrative receivership or reorganization similar law now or relief hereafter in effect or fail to file an answer or other pleading denying the material allegations of debtorsany such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party a Borrower or such any Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party Borrower or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Company or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $25,000,000, or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has Reportable Event shall have occurred with respect to any Plan sufficient that, together with all other Reportable Events that have occurred and are continuing, could reasonably be expected to give rise result in liability to the Company and its Subsidiaries in an aggregate amount in excess of $20,000,000, or any Single Employer Plan shall have any Unfunded Liabilities for which a Lien minimum funding waiver request has been filed under Section 302(f) 412 of the Code or Section 302 of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Company or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00020,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against or any Credit action shall be taken to discontinue or to assert the invalidity or unenforceability of any Loan Document, or any Loan Party party thereto (except shall fail to comply with any of the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement terms or such other provisions of any Loan Document to which it is a party, or such any Loan Party shall deny that it has any further liability under any Loan Document has expired to which it is a party, or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable give notice to such effect.
7.13. Any Collateral Document shall for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute fail to create a valid and perfected Lien on the Collateral intended first priority security interest in any collateral purported to be covered thereby (to thereby, except as permitted by the extent perfection by filing, registration, recordationterms of any Collateral Document, or possession is required herein any Collateral Document shall fail to remain in full force or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary effect or any SPV action shall be taken to require discontinue or to assert the amortization invalidity or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment unenforceability of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event Collateral Document. 7.12. Any Change in Control shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 2 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (ia) principal of any Revolving Loan when due, (ii) or any Reimbursement Obligation within one Business Day after the same becomes due, when due or (iiib) any interest upon any Revolving Loan Loan, any Facility Fee or LC Fee, or any Commitment Fee, LC Fee or other Obligations obligation under any of the Loan Documents within five three (53) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. (a) The breach by (i) the Parent REIT or the Borrower any of its Subsidiaries of any of the terms or provisions of Section 6.2, 6.3(a), 6.4(b)(i) (solely with respect to the REIT, any of Sections 6.2 other Parent Guarantor or 6.3 the Borrower), 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18 or 6.19; or (b) the breach by the REIT or any of Sections 6.10 through 6.16its Subsidiaries of Section 6.4(b)(i) (solely with respect to any Loan Party (other than the REIT, inclusive, Sections 6.18 through 6.22, inclusive, any other Parent Guarantor or Section 6.24 the Borrower)) or (ii) by any Credit Party of any of the terms or provisions of any Section 6.1 which is not remedied within ten (10) Business Days after the earlier of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) any Authorized Officer becoming aware of this Section 7.3), 4.1.3 or clauses (i) or any such breach and (ii) the Administrative Agent notifying the Borrower of Section 4.1.4 of the Security Agreementany such breach.
7.4. The breach by the Borrower REIT or any of its Subsidiaries (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (a) any Authorized Officer becoming aware of any such breach and (b) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. (a) Failure of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries to pay when due (after giving effect to all grace periods) any payment (whether of principal, interest or any other amount) in respect of any Material Indebtedness Indebtedness, (beyond the applicable grace period with respect thereto, if any); or b) the default by the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition under this clause (b) is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; , or (c) any portion of Material Indebtedness of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The REIT, the Borrower, any Eligible Property Entity or any Material Foreign Subsidiary shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its PropertyProperties, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate formal corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7; or (g) admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the REIT, the Borrower, any Credit Party Eligible Property Entity or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the REIT, the Borrower, any Eligible Property Entity or such any Material Foreign Subsidiary or any Substantial Portion of its PropertyProperties, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against the REIT, the Borrower, any Credit Party Eligible Property Entity or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the REIT or any of its Subsidiaries which, when taken together with all other Property of the REIT, the Borrower and the REIT’s Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any Subsidiary shall fail within 60 days to paysuch action occurs, bond or otherwise discharge one constitutes a Substantial Portion.
7.9. One or more (ia) judgments or orders for the payment of money in excess of $10,000,000 100,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (iib) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not shall remain unstayed, undischarged, undismissed, unvacated or unsatisfied for a period of thirty (30) consecutive days.
(a) stayed on appeal With respect to a Plan, the REIT, the Borrower or otherwise being appropriately contested an ERISA Affiliate is subject to a lien in good faith excess of $100,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesa Material Adverse Effect.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.107.11. Any Change in of Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to other than as the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or result of the application of the specific provisions of such Loan Document has expired or terminated in accordance with its termsDocument) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession any Guarantor shall deny that it has any further liability under any Guaranty to which it is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 2 contracts
Samples: Credit Agreement (Extra Space Storage Inc.), Credit Agreement (Extra Space Storage Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3, 6.4, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive6.18, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.19.
7.4. The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower becomes aware of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (to the extent not covered by independent third-party insurance which has not been denied), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith.
(a) With respect to a Plan, the Borrower or (b) paid in full or otherwise fully covered (an ERISA Affiliate is subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) lien in excess of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, $5,000,000 pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member 430(k) of the Controlled Group as withdrawal liability (determined as Code or Section 302(c) of the date of such notification), exceeds $20,000,000.
7.12. The Parent ERISA or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at an ERISA Event shall have occurred that, in the stated maturity opinion of the facility evidencing such Off-Balance Sheet LiabilitiesRequired Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in material liability.
Appears in 2 contracts
Samples: Omnibus Amendment (Plexus Corp), Credit Agreement (Plexus Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, Extension or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be being false or misleading in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment commitment fee, LC Fronting Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.3, Sections 6.18 through 6.7, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28, 6.29, 6.30, 6.31 and 6.32.
7.4. The breach by the Borrower (other than a breach which that constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which breach is not remedied within (i) five (5) Business Days 30 days after the occurrence thereof with respect to any breach earlier of Section 6.1 and (iia) thirty (30) days after written notice from the Agent or any Lender to the Borrower becomes aware thereof or (b) the Borrower receives notice of any other the same from Administrative Agent; provided, however, that if such breach cannot reasonably be cured within such 30-day period, as determined by the Administrative Agent, in its reasonable discretion, and the Borrower is diligently pursuing a remedy of such breach, the Borrower shall have a reasonable period to remedy such breach beyond such 30-day period, which shall not exceed 90 days.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect theretoIndebtedness, if any); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition existcondition, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be of its Subsidiaries being declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not of its Subsidiaries failure to pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary shall of its Subsidiaries (i) have has an order for relief entered with respect to it under the Federal federal bankruptcy laws as now or hereafter in effect, (ii) make a general makes an assignment for the benefit of creditors, (iii) apply applies for, seekseeks, consent to, consents to or acquiesce in, acquiesces in the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute institutes any proceeding seeking an order for relief under the Federal federal bankruptcy laws as now or hereafter in effect or effect, seeking to adjudicate it a bankrupt or insolvent, insolvent or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take takes any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail fails to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be is appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be is instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency condemns, seizes or otherwise appropriates or takes custody or control of all or any portion of the Property of the Borrower and its Subsidiaries that, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary shall fail of its Subsidiaries fails within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) or more in the aggregateaggregate in excess of any insurance coverage, or (ii) nonmonetary judgments or orders whichthat, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change An ERISA Event occurs that, in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000result in a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 2 contracts
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.), Credit Agreement (Roadrunner Transportation Systems, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extensionother Loan Document, any Loan or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (ia) any principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iiib) any interest upon any Revolving Loan Note or any Commitment Fee, LC Fee commitment fee or other Obligations fee or obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 SECTION 6.2, SECTION 6.3(a) or 6.3 or any of Sections SECTIONS 6.10 through 6.16, inclusive, Sections 6.16 or SECTIONS 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISECTIONS 7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within twenty (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3020) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, The default by the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Funded Indebtedness is outstandingaggregating in excess of $10,000,000 ($20,000,000, or such lower cross-default threshold amount as is provided in the SOMSC Credit Agreements, in the case of SOMSC) was created or is governed, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Funded Indebtedness or the lender(s) under any such agreement to cause, such Material Funded Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Funded Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Significant Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or SECTION 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7SECTION 7.7 or (g) become unable to pay, not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its Significant Subsidiaries or any substantial portion of its Property, or a proceeding described in Section 7.6(ivSECTION 7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Significant Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 2,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary multiple judgments or orders which, individually or for the payment of an aggregate amount in the aggregate, would reasonably be expected to have a Material Adverse Effectexcess of $10,000,000), which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject and as to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policieswhich no enforcement actions have been commenced.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.10. The occurrence of any "default", as defined in any Loan Document (other than this Agreement or the Notes) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement or the Notes), which default or breach continues beyond any period of grace therein provided.
7.11. The Parent Any License of any Insurance Subsidiary (a) shall be revoked by the Governmental Authority which issued such License, or any other member of the Controlled Group action (administrative or judicial) to revoke such License shall have been notified commenced against such Insurance Subsidiary and shall not have been dismissed within thirty (30) days after the commencement thereof, (b) shall be suspended by such Governmental Authority for a period in excess of thirty (30) days or (c) shall not be reissued or renewed by such Governmental Authority upon the sponsor expiration thereof following application for such reissuance or renewal of a Multiemployer Plan that it has incurredsuch Insurance Subsidiary, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required in any case, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000have a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Any Insurance Subsidiary shall (i) be the subject of any proceeding a final non-appealable order imposing a fine by or investigation pertaining to at the release by the Parent, the Borrower or any Subsidiary or any other Person request of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities state insurance regulatory agency as a result of the non-payment violation by such Insurance Subsidiary of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof state's applicable insurance laws or the expiry date of regulations promulgated in connection therewith which could reasonably be expected to have a Material Adverse Effect.
7.13. Any Insurance Subsidiary shall become subject to any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesconservation, or (y) such investors shall require the amortization rehabilitation or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Eventorder, directive or (ii) causes the replacement or substitution of the Parent, mandate issued by any Subsidiary Governmental Authority or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 Insurance Subsidiary shall become subject to any other directive or mandate issued by any Governmental Authority in either case which could reasonably be expected to have a Material Adverse Effect and which is not apply on any date with respect to stayed within thirty (a30) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.days. ARTICLE VIII
Appears in 1 contract
Samples: Credit Agreement (White Mountains Insurance Group LTD)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Nonpayment of any principal payment on any Note when due.
7.2 Nonpayment of interest upon any Note or of any Facility Fee or other payment Obligations under any of the Loan Documents within five (5) Business Days after the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2 through 6.21 and 6.23.
7.4 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any material certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.5 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2, 7.3 or 7.4) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3015) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.6 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due (A) any Material Recourse Indebtedness in excess of $25,000,000 in the aggregate or (beyond B) any Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in the applicable grace period with respect thereto, if any)aggregate; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingagreement, or any other event shall occur or condition exist, the effect of which default, event causes or condition is to cause, or to permit the holder(spermits (A) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Recourse Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared of its Subsidiaries in excess of $25,000,000 in the aggregate or (B) any Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in the aggregate to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or thereof (provided that the Parent, failure to pay any such Indebtedness shall not constitute a Default so long as the Borrower or its Subsidiaries is diligently contesting the payment of the same by appropriate legal proceedings and the Borrower or its Subsidiaries have set aside, in a manner reasonably satisfactory to Administrative Agent, a sufficient reserve to repay such Indebtedness plus all accrued interest thereon calculated at the default rate thereunder and costs of enforcement in the event of an adverse outcome).
7.7 The Borrower, or any Subsidiary shall not payhaving more than $20,000,000 of Equity Value, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.7, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.8 or (vii) admit in writing its inability to pay its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a 7.8 A receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign any Subsidiary having more than $20,000,000 of Equity Value, or for any Substantial Portion of its Propertythe Property of the Borrower or such Subsidiary, or a proceeding described in Section 7.6(iv7.7(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign such Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.8. 7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 sixty (60) days to pay, bond or otherwise discharge one or more (i) any judgments or orders for the payment of money in excess of an amount which, when added to all other judgments or orders outstanding against Borrower or any Subsidiary would exceed $10,000,000 (or the equivalent thereof in currencies other than Dollars) 20,000,000 in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to which have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) been stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.10 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $500,000 per annum.
7.12. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000500,000.
7.13. The Parent7.12 Failure to remediate within the time period permitted by law or governmental order, after all administrative hearings and appeals have been concluded (or within a reasonable time in light of the nature of the problem if no specific time period is so established), environmental problems at Properties owned by the Borrower or any Subsidiary shall (i) be of its Subsidiaries or Investment Affiliates if the subject estimated costs of remediation at all such Properties in the aggregate exceed $20,000,000.
7.13 The occurrence of any proceeding or investigation pertaining to the release by the Parent, the Borrower or “Default” as defined in any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or the breach of any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other provisions of any Loan Document)
7.15, which default or breach continues beyond any period of grace therein provided. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.14 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesMaterial Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Developers Diversified Realty Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Loan, any Letter of Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan or Reimbursement Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.19, inclusive6.21, 6.23, 6.24, 6.25, 6.26, 6.27, 6.28 or Section 6.24 6.30; or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of any and conditions of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.1, 4.1.3 6.3, 6.6, 6.9 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.29 which is not remedied within ten days.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachRequired Lenders.
7.5. (i) Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond other than Indebtedness owing by the applicable grace period with respect thereto, if anyBorrower to any Subsidiary or by any Subsidiary to the Borrower or another Subsidiary and other than Rate Management Obligations) outstanding in a principal amount aggregating in excess of $5,000,000 ("Material Indebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries then outstanding in a principal amount in excess of $2,500,000 shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentand other than in connection with the refinancing of the Bridge Loan with the proceeds of Permitted Subordinated Indebtedness) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due; or (ii) the occurrence of an early termination under any Rate Management Transaction resulting from (A) any event of default under such Rate Management Transaction as to which the Borrower or any Subsidiary is the defaulting party or (B) any termination event as to which the Borrower or any Subsidiary is an affected party and, in either event, the termination value or other similar obligation owed by the Borrower or such Subsidiary as a result thereof is in excess of $5,000,000 and remains unpaid.
7.6. Any Credit Party The Borrower or any of its Material Foreign Subsidiary Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file (by the deadline for such filing) an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith and in a reasonably timely manner any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any of its Material Foreign SubsidiarySubsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such any of its Material Foreign Subsidiary Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any of its Material Foreign Subsidiary Subsidiaries and in each case such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money (except to the extent covered by insurance as to which the insurer has not disclaimed coverage) in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAreasonably timely manner.
7.10. Any Change in Control shall occur.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000could reasonably be expected to have a Material Adverse Effect.
7.127.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000which could reasonably be expected to have a Material Adverse Effect.
7.137.12. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding order by any Governmental Authority or investigation any judicial determination of liability pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect, taking into account amounts to be paid by third parties.
7.13. Any Change in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithControl shall occur.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created be taken by the Borrower or any of its Subsidiaries to discontinue or to assert the invalidity or unenforceability of any Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document).
7.15. An event (such eventAny Guarantor shall take any action to revoke or discontinue or to assert the invalidity or unenforceability of any Guaranty, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV Guarantor shall deny that is has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be prove to have been materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one three Business Day Days after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The material breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Article VI Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.20, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.24, 6.25, 6.26, 6.27, 6.28, 6.29, 6.30,or 6.31.
7.4. The material breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond other than the applicable grace period with respect thereto, if anyObligation) aggregating in excess of $1,000,000 ("Material Indebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal federal bankruptcy laws Laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal federal bankruptcy laws Laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law Law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Guarantor, the Borrower and their Subsidiaries which, when taken together with all other Property of the Guarantor, the Borrower and their Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion unless Outstanding Credit Exposure is contemporaneously reduced by the Release Price determined in connection therewith by the Required Lenders.
7.9. The Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $100,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan Plan, if any, that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000100,000 or requires payments exceeding $100,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan Plan, if any, is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000100,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance Hazardous Substance into the environment, or (ii) violate any Applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default", as defined in any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in this Agreement) or the first parenthetical above); the Liens created by the Collateral Documents shall at breach of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount Loan Document (other than this Agreement), which default or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur breach continues beyond any period of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Nonpayment of any principal payment on any Note, Loan or Reimbursement Obligation when due.
7.2 Nonpayment of interest upon any Note or of any Facility Fee or other payment Obligations under any of the Loan Documents within five (5) Business Days after the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2 through 6.17.
7.4 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any material certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.5 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISections 7.1, 7.2, 7.3 or 7.4) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3015) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.6 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond Indebtedness, in excess of $2,500,000 in the aggregate, after giving effect to any applicable cure, grace period with respect thereto, if any)or forbearance periods; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingagreement, or any other event shall occur or condition exist, which causes or permits Indebtedness in excess of $2,500,000 in the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared aggregate to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; , after giving effect to any applicable cure, grace or forbearance periods (provided that the Parent, failure to pay any such Indebtedness shall not constitute a Default so long as the Borrower or any Subsidiary shall not payits Subsidiaries is diligently contesting the payment of the same by appropriate legal proceedings and the Borrower or its Subsidiaries have set aside, in a manner reasonably satisfactory to Administrative Agent, a sufficient reserve to repay such Indebtedness plus all accrued interest thereon calculated at the default rate thereunder and costs of enforcement in the event of an adverse outcome).
7.7 The Borrower, or admit any one or more of Borrower’s Subsidiaries having collectively more than $25,000,000 of Equity Value (or in writing its inability to paythe case of any one or more of Borrower’s Subsidiaries that is not a Wholly-Owned Subsidiary, its debts generally as they become due.
7.6. Any Credit Party such Subsidiary or any Material Foreign Subsidiaries for which the Borrower’s proportionate share of the Equity Value of such Subsidiary or Subsidiaries exceeds $25,000,000 in the aggregate), shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion portion of its PropertyProperty constituting, in the aggregate, more than $25,000,000 of Equity Value, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.7, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.8 or (vii) admit in writing its inability to pay its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a 7.8 A receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any one or more of Borrower’s Subsidiaries having collectively more than $25,000,000 of Equity Value (or in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, such Credit Party Subsidiary or Subsidiaries for which the Borrower’s proportionate share of the Equity Value of such Subsidiary or Subsidiaries exceeds $25,000,000 in the aggregate), or for any portion of the Property of the Borrower or such Material Foreign Subsidiary or any Substantial Portion constituting, in the aggregate, more than $25,000,000 of its PropertyEquity Value, or a proceeding described in Section 7.6(iv7.7(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign such Subsidiary or Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.8. 7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 sixty (60) days to pay, bond or otherwise discharge one or more (i) any judgments or orders for the payment of money in excess of an amount which, when added to all other judgments or orders outstanding against Borrower or any Subsidiary would exceed $10,000,000 (or the equivalent thereof in currencies other than Dollars) 25,000,000 in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to which have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) been stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.10 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0002,000,000 or requires payments exceeding $1,000,000 per annum.
7.12. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.13. The Parent7.12 Failure to remediate within the time period permitted by law or governmental order, after all administrative hearings and appeals have been concluded (or within a reasonable time in light of the nature of the problem if no specific time period is so established), environmental problems at Properties owned by the Borrower or any Subsidiary shall (i) be of its Subsidiaries or Investment Affiliates if the subject estimated costs of remediation at all such Properties in the aggregate exceed $25,000,000.
7.13 The occurrence of any proceeding “Default” as defined in any Loan Document or investigation pertaining to the release by breach of any of the Parentterms or provisions of any Loan Document, which default or breach continues beyond any period of grace therein provided.
7.14 A Guarantor Default (as defined in the Borrower or any Subsidiary DDR Guaranty) shall occur.
7.15 The Borrower, DDR or any other Person Loan Party shall disavow, revoke or terminate (or attempt to terminate) any Loan Document to which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of this Agreement or any toxic or hazardous waste or substance into the environmentother Loan Document, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower this Agreement or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any other Loan Document shall fail cease to remain be in full force or and effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment express terms thereof).
7.16 A Change of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event Control shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Retail Value Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Administrative Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement or any other Loan Document (other than, in each case, any financial projections, estimates, budgets or other forward looking statements or general market data, so long as such financial projection, estimate, budget or other forward looking statement or general market data was prepared in good faith based upon accurate and complete historical data for the Company and its Subsidiaries and reasonable assumptions) shall be false in any material respect on the date as of which made made, except to the extent such representation or deemed madewarranty expressly relates to an earlier date, so long as such representation or warranty was true as of such earlier date.
7.2. Nonpayment of (i) principal of any Revolving Loan or Reimbursement Obligation when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one three Business Day Days after written notice from the Administrative Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation becomes written notice from the Administrative Agent that the same has become due.
7.3. The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.1, 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive, 6.19 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20.
7.4. The breach by the any Borrower or Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.5. Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $20,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to have a Material Adverse Effect.
7.9. The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or 20,000,000 in aggregate amount for the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse EffectCompany and its Subsidiaries, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully which is not covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAwhich the insurance provider has not challenged or denied coverage.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $5,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $5,000,000 (a “Material Plan”) shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the date of such notification)PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation in reorganization or being terminated have been or will be increased, excess of $5,000,000 in the aggregate, over the amounts contributed to such Multiemployer Plans aggregate amount for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000Controlled Group.
7.137.11. The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any applicable foreign, federal, state or local environmental, health or safety law or regulation, which, in either case, could reasonably be expected to have a Material Adverse Effect.
7.12. The occurrence of any Change of Control.
7.13. The occurrence of any “default”, as defined in any Collateral Document, or the case breach of an event described in clause (i) any of the terms or clause (ii), has resulted in liability to the Parent, the Borrower or provisions of any Subsidiary in an amount equal to $20,000,000 or moreCollateral Document, which liability is not paid, bonded default or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithbreach continues beyond any period of grace therein provided.
7.14. Any Loan Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document).
7.15. An event (such eventAny Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or assert the invalidity or unenforceability of any Guaranty by any Guarantor, an “Off-Balance Sheet Trigger Event”) or any Guarantor shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities fail to comply with any of the Parentterms or provisions of any Guaranty to which it is a party, any Subsidiary or any SPV Guarantor denies that it has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) gives notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Letter of Credit, any Guaranty or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Loan or Revolving Loan Note or L/C Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Revolving Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower or any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1, 6.2, 6.3(a), 6.9(b), 6.10, 6.11, 6.12, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive, 6.23 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.24.
7.4. 7.4 The breach by the Borrower or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after receipt of written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness equal to or exceeding $25,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness evidenced by or relating to the 2013 Subordinated Notes, the 2015 Subordinated Notes, the 2020 Subordinated Notes, the 2035 Convertible Notes, the Trust PIERS, the New Trust PIERS, or any Permitted Subordinated Debt, or any other Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries equal to or exceeding $25,000,000 in the aggregate, shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment payment), or specified mandatory prepayment) becomes manditorily redeemable, prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal United States bankruptcy laws as now or hereafter in effecteffect or cause or allow any similar event to occur under any bankruptcy or similar law or laws for the relief of debtors as now or hereafter in effect in any other jurisdiction, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator liquidator, monitor or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal United States bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its property or its debts under any law relating to bankruptcy, insolvency or reorganization or compromise of debt or relief of debtorsdebtors as now or hereafter in effect in any jurisdiction, or any organization, arrangement or compromise of debt under the laws of its jurisdiction of incorporation or fail to promptly file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith faith, or consent to or acquiesce in, any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed (either privately or by a court) for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any Subsidiary shall fail within 60 days to paysuch Condemnation occurs, bond constitutes a Substantial Portion.
7.9 Any judgment or otherwise discharge one or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) 25,000,000 in the aggregateaggregate shall be rendered against the Borrower or any Subsidiary of the Borrower, and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) nonmonetary judgments there shall be a period of 60 consecutive days during which a stay of enforcement of such judgment or orders whichorder, individually by reason of a pending appeal or otherwise, shall not be in effect.
7.10 An ERISA Event shall have occurred that, in the aggregateopinion of the Required Lenders, would when taken together with other ERISA Events that have occurred, could reasonably be expected to result in liability to the Borrower and the Subsidiaries in an aggregate amount exceeding $15,000,000.
7.11 Any non-monetary judgment or order shall be rendered against the Borrower or any Subsidiary of the Borrower that could reasonably be expected to have a Material Adverse Effect, and there shall be a period of 60 consecutive days during which judgment(sa stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
7.12 Except as permitted by Section 6.17(c), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject security interest purported to be created by any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken Security Document shall cease to terminate any Plan, other than a standard termination under Section 4041(b) of ERISAbe, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified be asserted by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary Guarantor not to be, a valid, perfected, first priority (subject Permitted Encumbrances (solely to the extent such Permitted Encumbrances are prior as a matter of law) and Liens expressly permitted by clauses (e), (f) and (g) of Section 6.16) security interest in the securities, assets or properties covered thereby, except to the extent that any such loss results solely from the actions or the failure to act of the Agent.
7.13 The Borrower or any of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary such Subsidiary, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any environmental, health or safety law or regulation of any Governmental Authority, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. 7.14 Any Guaranty or other Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, Guaranty or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) or any Guarantor shall occur which (i) permits the investors fail to perform its obligations under or purchasers in respect of Off-Balance Sheet Liabilities otherwise comply with any of the Parentterms or provisions of any Guaranty to which it is a party, any Subsidiary or any SPV Guarantor shall deny that it has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors effect.
7.15 Any Change in Control shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false incorrect in any material respect on the date as of which made or deemed made.
7.2. Nonpayment 7.2 The failure or refusal of any Obligor to (ia) pay the principal of any Revolving of the Obligations, or any part thereof, as it becomes due in accordance with the terms of the Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes dueDocuments, or (iiib) pay interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under on any of the Obligations, or any part thereof, or any other amount or fee under the terms of this Agreement and the other Loan Documents Documents, within five (5) Business Days after such interest, fee or other Obligation it becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.1.2, 6.1.9, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.7 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.2.8.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within or by any Obligor of any other Loan Document and, if capable of being remedied, such breach shall remain unremedied for 45 days after the earlier of (i) five (5) Business Days after an Authorized Officer of the occurrence thereof with respect to any breach Borrower obtaining knowledge of Section 6.1 and such breach, or (ii) thirty (30) days after written notice from the Agent or any Lender thereof being given to the Borrower by any Lender or the Agent.
(a) Failure of any other such breach.
7.5. Failure of the Parent, the Borrower Obligor or any Subsidiary (other than any Project Financing Subsidiary) of an Obligor to pay when due (subject to any Material Indebtedness (beyond the applicable grace period with respect theretoperiod), if any)whether by acceleration or otherwise, any Debt (other than the Obligations and other than the Existing Trident Subordinated Debt and other than the CUSA Assumed Debt) aggregating for all of the Obligors and their respective Subsidiaries in excess of $40,000,000 in principal amount; or (b) the default by the Parent, the Borrower any Obligor or any Subsidiary (other than any Project Financing Subsidiary) of an Obligor in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness any Debt (other than the Obligations and other than the Existing Trident Subordinated Debt and other than the CUSA Assumed Debt) aggregating for all of the Obligors and their respective Subsidiaries (other than any Project Financing Subsidiary) in excess of $40,000,000 in principal amount was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or other event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any Debt to cause such agreement to cause, such Material Indebtedness Debt to become due prior to its stated maturity and such default, event or condition continues for more than 30 days; provided, however, that in the event the rights of any holder or holders of such Debt to accelerate such Debt have been terminated by cure of such default or written waiver by the holder of such Debt, such default shall not thereafter constitute a Default hereunder until such time as the right of such holder or holders to accelerate such Debt again arises; (c) any Debt (other than the Obligations and other than the Existing Trident Subordinated Debt and other than the CUSA Assumed Debt) of any of the Obligors or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of their respective Subsidiaries aggregating for all of the Parent, the Borrower or any Subsidiary Obligors and their respective Subsidiaries in excess of $40,000,000 in principal amount shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; (d) any of the Existing Trident Subordinated Debt shall be declared to be due and payable or required to be prepaid prior to the Parent, stated maturity thereof and shall not be paid (or such acceleration rescinded) within 30 days of the date on which it is required to be so paid; or (e) demand for payment shall be made for all or any part of the CUSA Assumed Debt prior to the stated maturity thereof and such payment shall not be made (or such demand rescinded) on or before the earlier of (i) 30 days following such demand or (ii) the date upon which the holder thereof commences proceedings to collect such payment.
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Subsidiaries (other than any Project Financing Subsidiary) or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 7.6, (vi) not pay, or admit in writing its inability to pay, its debts generally as they become due. or (vivii) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign of its Subsidiaries (other than any Project Financing Subsidiary), or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary or such Guarantor or any Substantial Portion of its Propertythe Property of any of the foregoing, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries (other than any Project Financing Subsidiary) or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 The Parent, failure of the Borrower or any Subsidiary shall fail of the Borrower (other than any Project Financing Subsidiary) to have stayed or discharged within 60 a period of thirty (30) days to payafter the commencement thereof any attachment, bond sequestration, or otherwise discharge one or more (i) judgments or orders for the payment similar proceeding against any of money in excess its assets having a fair market value of $10,000,000 (25,000,000 or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesmore.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.9 Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any 7.10 Any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationSubsidiary Guaranty, or possession is required herein or therein) in favor any Guarantor shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect provisions of Off-Balance Sheet Liabilities of the Parent, any Subsidiary Guaranty to which it is a party, or any SPV Guarantor denies that it has any further liability under any Subsidiary Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) gives notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; effect provided, however, that this Section 7.15 no termination of a Subsidiary Guaranty resulting from the merger of one Subsidiary of the Borrower which has executed a Subsidiary Guaranty into another Subsidiary of the Borrower which has executed a Subsidiary Guaranty shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation constitute a Default so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity Subsidiary Guaranty of the facility evidencing corporation surviving such Off-Balance Sheet Liabilitiesmerger remains in full force and effect and that any release of an Additional Guaranty pursuant to Section 6.1.3 shall not constitute a Default.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made, and the failure of Borrower to remedy such failure within twenty (20) days of the date when made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when within three (3) days after the same becomes due, (ii) nonpayment of any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment commitment fee, LC Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. (a) The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.1(i), inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) or (iii), 6.2, 6.10, 6.12, 6.13, 6.14, 6.18, 6.25 or 6.26.
(b) The breach by any Credit Party the Borrower of any of the terms or provisions of any Section 6.11 or 6.15, and the continuation of Section 4.1.1 such breach for ten (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i10) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreementdays.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within ten (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3010) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor to pay when due any Indebtedness aggregating in excess of $250,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor in the performance (beyond performance(beyond the applicable grace period with respect thereto, if any) of any material term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor shall (i) have an a final order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Guarantor or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor and in either case such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries or any Guarantor which, when taken together with all other Property of the Borrower and its Subsidiaries or any Guarantor so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion; provided, that it shall not constitute a Default under this Section 7.8 if Borrower obtains the release of such condemnation, seizure, appropriation, custody or control within fifteen (15) days of its occurrence.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 100,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $1,500,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000500,000 or requires payments exceeding $250,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,500,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in liability to Control shall occur.
7.15 The occurrence of any "default", as defined in any Loan Document (other than this Agreement) or the Parentbreach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16 Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation when due or the breach by the Borrower of any material term, provision or condition contained in an amount equal to $20,000,000 or moreany Rate Management Transaction, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faitheither case the expiration of any applicable cure period.
7.14. 7.17 Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert the invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to comply with any of the material terms or provisions of any Guaranty to which it is a party, or any Guarantor shall deny that its obligations thereunder are discontinuedit has any further liability under any Guaranty to which it is a party, invalid or unenforceable for any reason (other than those enumerated shall give notice to such effect.
7.18 The representations and warranties set forth in the first parenthetical above); the Liens created by the Collateral Documents Section 5.15 shall at any time not constitute a valid be true and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiescorrect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one two Business Day Days after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28, 6.29, 6.30 and 6.31.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) this Agreement or (ii) any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any), in each case which is not remedied within thirty (30) days after the earlier to occur of (x) written notice from the Administrative Agent or any Lender to the Borrower or (y) an Authorized Officer otherwise becomes aware of any such breach.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due any Material Indebtedness (subject to any applicable grace period with respect thereto, if any, set forth in the Material Indebtedness Agreement evidencing such Material Indebtedness) which failure has not been (i) timely cured or (ii) waived in writing by the requisite holders of such Material Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, Agreement or any other event shall occur or condition exist, exist thereunder and such default has not been (x) timely cured or (y) waived in writing by the requisite holders of the Material Indebtedness in respect thereof and the effect of which such default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid otherwise not covered by a creditworthy insurer or indemnitor.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed $1,000,000 in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate, or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step 7.11 Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation, when due or the breach by the Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAparty thereto.
7.10. 7.12 Any Change in of Control shall occur.
7.11. 7.13 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $1,000,000 per annum.
7.12. 7.14 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.13. 7.15 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), which has resulted in liability to the Parent, the Borrower or any Subsidiary of its Subsidiaries in an amount equal to $20,000,000 1,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 45 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan 7.16 This Agreement (including amendments and supplements hereto), the Guaranty Agreement (including amendments and supplements thereto) or any Collateral Document (including amendments and supplements thereto) shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken to assert the extent such Credit Party has been released from its obligations thereunder invalidity or unenforceability of, or which results in accordance with this Agreement the invalidity or such other Loan Document or unenforceability of, any such Loan Document has expired or terminated in accordance with its terms) Document, or any Credit Party shall assert that its obligations thereunder are discontinuedCollateral Document shall, invalid other than as permitted thereby, fail to create or unenforceable maintain for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended security interest in any collateral purported to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesthereby.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Facility Letter of Credit, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) ; nonpayment of any Reimbursement Obligation within one Business Day after the same becomes when due, ; or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee fee or other Obligations obligation under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.15, 6.16, inclusive, Sections 6.18 through 6.22, inclusive, 6.17 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.18.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen days after the earlier to occur of (i) five (5) Business Days after the occurrence thereof with respect to any breach receipt of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to or (ii) the date the Borrower becomes aware of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness in excess of $5,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness in excess of $5,000,000 in the aggregate was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness in excess of $5,000,000 in the Parent, aggregate of the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion portion of its PropertyProperty that constitutes a Substantial Portion, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its PropertySubsidiaries or any portion of its Property that constitutes a Substantial Portion, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect5,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any federal, state or local environmental, health or safety law or regulation, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.147.11. Any Loan Document Change in Control shall occur.
7.12. Any Guaranty shall fail to remain in full force or effect against or any Credit Party party thereto action shall be taken to discontinue or to assert the invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a party, or any Guarantor denies that it has any further liability under any Guaranty to which it is a party, or gives notice to such effect.
7.13. Twenty-five percent (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms25%) or more of the value of any Credit Party shall assert that its obligations thereunder class of equity interests (which are discontinued, invalid or unenforceable for any reason not "publicly-offered securities" within the --- meaning of 29 C.F.R. Sec.2510.3-101 (other than those enumerated b)(2)) in the first parenthetical aboveBorrower shall be held by "benefit plan investors" within the meaning of 29 C.F.R. Sec.2510.3-101(f); the Liens created by the Collateral Documents . 45
7.14. The Borrower or any Subsidiary shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor have received notice of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement suspension or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities debarment of the Parent, Borrower or any Subsidiary or any SPV to require from contracting with the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesfederal government.
Appears in 1 contract
Samples: Revolving Credit Agreement (BDM International Inc /De)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.2, 6.3 or any of Sections 6.10 through 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 6.17; or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)Sections 6.18, 4.1.3 6.19 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20, which is not remedied within 10 days.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness with a then outstanding principal amount in excess of $5,000,000 (beyond the applicable grace period with respect thereto, if any); "Major Indebtedness") or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Major Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Major Indebtedness or the lender(s) under any to cause such agreement to cause, such Material Major Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries of a then outstanding principal amount of $500,000 shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.scheduled
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Facility Document, any Letter of Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Facility Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (ia) any principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes when due, or (iiib) interest upon any Revolving Loan or any Commitment interest, Unused Fee, LC Letter of Credit Fee or other Obligations fee or obligations under any of the Loan Facility Documents within five (5) Business Days days after such interest, fee written notice from the Administrative Agent or other Obligation becomes dueany Lender.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of 2.8, 6.2, 6.3, Sections 6.10 through 6.16, inclusive6.13, Sections 6.18 6.15 through 6.22, inclusive, 6.20 or Section 6.24 Sections 6.22 through 6.23 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.26.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISections 7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days (or in the case of Section 6.14, ten (10) days) after the Borrower has knowledge thereof or written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness aggregating in excess of $2,500,000 when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Indebtedness was created or is outstandinggoverned, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the .
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.7 or (g) become unable to pay, not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 thirty (30) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (ia) final, nonappealable judgments or orders for the payment of money in excess of $10,000,000 2,500,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (iib) final, nonappealable nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. 7.10 Any formal step is taken to terminate Reportable Event shall occur in connection with any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0002,500,000.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0002,500,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (ia) be the subject of to any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (iib) violate any Environmental Law, which, in the case of an event described in clause (ia) or clause (iib), could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any “default”, as defined in any Facility Document (other than this Agreement) or the breach of any of the terms or provisions of any Facility Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16 There shall occur a change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries which has resulted in liability to the Parent, the a Material Adverse Effect.
7.17 The Borrower or any Subsidiary in an amount equal of its Subsidiaries incurs or becomes subject to $20,000,000 action or morethreatened action of any Governmental Authority, including, without limitation, a fine, penalty, cease and desist order or revocation, suspension or limitation of a License, the effect of which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithcould reasonably be expected to have a Material Adverse Effect.
7.14. 7.18 Any Loan Security Document shall for any reason fail to create a valid and perfected, first priority security interest in any Collateral purported to be covered thereby, except as permitted by the terms of such Security Document, or any Facility Document, once executed, shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Facility Document.
7.19 Lloyd’s shall draw under a Letter of Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created except as permitted by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor terms of the Agent, having the priority contemplated Lloyd’s Comfort Letter or Lloyd’s shall advise that it will not abide by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities terms of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesLloyd’s Comfort Letter.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Letter of Credit, any Guaranty or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan or Note or L/C Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower or any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1, 6.2, 6.3, 6.4(a), 6.11, 6.12, 6.13, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21 or 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after receipt of written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness equal to or exceeding $25,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or is outstandinggoverned, or any other event (including the occurrence of any "Amortization Event" or event of like import in connection with the Receivables Purchase Facility, but excluding a redemption of Receivables and Related Security pursuant to a "clean-up call" event) shall occur or condition exist, (i) the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity maturity, or any commitment to lend (ii) if such default or event shall occur or such condition exist under any such agreement Receivables Purchase Documents, the effect of which is to be terminated prior (A) terminate, or permit the investors thereunder to its stated expiration date; terminate, the reinvestment of collections or proceeds of Receivables and Related Security under any Material Indebtedness Receivables Purchase Document (other than a termination resulting solely from the request of the Parent, the Borrower or any Subsidiary of its Subsidiaries) or (B) cause the replacement of, or permit the investors thereunder to replace, the Person then acting as servicer for the related Receivables Purchase Facility; or any Indebtedness evidenced by or relating to the Convertible Notes, the 2011 Subordinated Notes, the 2013 Subordinated Notes, the Trust PIERS or any Permitted Subordinated Debt, or any other Indebtedness of the Borrower or any of its Subsidiaries equal to or exceeding $25,000,000 in the aggregate, shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment payment), or specified mandatory prepayment) becomes manditorily redeemable, prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal United States bankruptcy laws as now or hereafter in effecteffect or cause or allow any similar event to occur under any bankruptcy or similar law or laws for the relief of debtors as now or hereafter in effect in any other jurisdiction, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator liquidator, monitor or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal United States bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its property or its debts under any law relating to bankruptcy, insolvency or reorganization or compromise of debt or relief of debtorsdebtors as now or hereafter in effect in any jurisdiction, or any organization, arrangement or compromise of debt under the laws of its jurisdiction of incorporation or fail to promptly file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith faith, or consent to or acquiesce in, any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed (either privately or by a court) for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6 (d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect25,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $10,000,000 or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any PlanReportable Event, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient the occurrence which may reasonably be expected to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change Material Adverse Effect, shall occur in Control shall occurconnection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00010,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00010,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary such Subsidiary, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any environmental, health or safety law or regulation of any Governmental Authority, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Guaranty or other Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, Guaranty or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document), or any Guarantor shall fail to perform its obligations under or otherwise comply with any of the terms or provisions of any Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under any Guaranty to which it is a party, or shall give notice to such effect.
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) Any Change in Control shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of Borrower's Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) any interest or principal on the Loan, or nonpayment of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents Documents, or nonpayment of any Rate Management Obligations to any Lender, or nonpayment of any reimbursement obligations to a Lender under any Letter of Credit, in each case within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.19.
7.4. The breach by the Parent or Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of Borrower's Subsidiaries to pay when due any Indebtedness to any Person other than the Lenders aggregating in excess of $2,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower or any Subsidiary of Borrower's Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of Borrower's Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Parent, Borrower or any Material Foreign Subsidiary of Borrower's Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Parent, Borrower or any Material Foreign Subsidiaryof Borrower's Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Parent, Borrower or such Material Foreign Subsidiary any of Borrower's Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Parent, Borrower or any Material Foreign Subsidiary of Borrower's Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Parent, Borrower and Borrower's Subsidiaries which, when taken together with all other Property of the Parent, Borrower and Borrower's Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of Borrower's Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change in Control shall occur.
7.11. The Parent Any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any Substantial Portion of the Collateral purported to be covered thereby, except as permitted by the terms of this Agreement or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurredCollateral Document, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment unenforceability of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesCollateral Document.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a “Default” hereunder:
7.1. Any (a) any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary Loan Party to the Lenders any Lender or the Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document of the foregoing shall be materially false in any material respect on the date as of which made or deemed made.;
7.2. Nonpayment of (b) (i) principal nonpayment, when due (whether upon demand or otherwise), of any Revolving Loan when dueprincipal, or (ii) nonpayment, within three (3) days after the due date (whether upon demand or otherwise), of any interest, fee, Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligation owing under any of the Loan Documents within five Document;
(5c) Business Days after such interest, fee or other Obligation becomes due.
7.3. The the breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Loan Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.36.2, 6.3(a), 4.1.3 6.16 through 6.23 or clauses 6.25 through 6.31 which is not remedied within three (i3) days after the earlier of such breach or written notice from the Agent or any Lender;
(iid) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower any Loan Party (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) Section 6.1, 6.3 (other than Section 6.3(a)), 6.4 through 6.15 or 6.24 of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3015) days after the earlier of such breach or written notice from the Agent or any Lender to or (ii) any other Section of this Agreement which is not remedied within fifteen (15) days after the Borrower earlier of such breach or written notice from the Agent or any Lender;
(e) failure of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary Loan Party to pay when due any Material Indebtedness (beyond the applicable grace period with respect theretoor a default, if any); breach or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of other event occurs under any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or Agreement of any other event shall occur or condition existLoan Party, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary Loan Party shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary Loan Party shall not pay, or admit in writing its inability to pay, its debts generally as they become due.;
7.6. Any Credit (f) any Loan Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion portion of its PropertyProperty which constitutes a Substantial Portion, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 subsection (f) or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.subsection (g) below;
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, (g) a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit any Loan Party or such Material Foreign Subsidiary or any Substantial Portion portion of its PropertyProperty which constitutes a Substantial Portion, or a proceeding described in Section 7.6(ivsubsection (f)(iv) of Article VII shall be instituted against any Credit Loan Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty consecutive days.;
7.8. The Parent(h) any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of any Loan Party which, when taken together with all other Property of any Loan Party so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion;
(i) any loss, theft, damage or destruction of any item or items of Collateral or other property of any Loan Party occurs which could reasonably be expected to cause a Material Adverse Effect and is not adequately covered by insurance;
(j) any Loan Party shall fail within 60 thirty days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s)judgments or orders, in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or by proper proceedings diligently pursued;
(bk) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.;
7.11. The Parent (l) the Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $1,000,000 or any Reportable Event shall occur in connection with any Plan;
(m) any Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent such Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.1,000,000 or requires payments exceeding $1,000,000 per annum;
7.12. The Parent (n) a Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent such Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.1,000,000;
7.13. The Parent, the Borrower or (o) any Subsidiary Loan Party shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary Loan Party or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect;
(p) the occurrence of any “default,” as defined in liability any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided;
(q) the Guaranty shall fail to the Parent, the Borrower remain in full force or effect or any Subsidiary action shall be taken to discontinue or to assert the invalidity or unenforceability of the Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under the Guaranty to which it is a party, or shall give notice to such effect;
(r) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in an amount equal any Collateral purported to $20,000,000 be covered thereby, except as permitted by the terms of any Collateral Document, or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan any Collateral Document shall fail to remain in full force or effect against or any Credit action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or any Loan Party party thereto shall fail to comply with any of the terms or provisions of any Collateral Document;
(except s) any material provision of any Loan Document for any reason ceases to the extent such Credit Party has been released from its obligations thereunder be valid, binding and enforceable in accordance with this Agreement its terms (or such other any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Document Documents has expired ceased to be or terminated otherwise is not valid, binding and enforceable in accordance with its terms);
(t) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason the representations and warranties set forth in Section 5.17 (other than those enumerated in the first parenthetical above)Plan Assets; the Liens created by the Collateral Documents Prohibited Transactions) shall at any time not constitute a valid be true and perfected Lien on correct;
(u) any Borrower or any of their Subsidiaries shall fail to pay when due any Operating Lease Obligation in excess of $1,000,000;
(v) nonpayment by any Borrower or any of its Subsidiaries of any Rate Management Obligation when due or the Collateral intended to be covered thereby (to the extent perfection breach by filingany Borrower or any of its Subsidiaries of any term, registration, recordation, provision or possession is required herein condition contained in any Rate Management Transaction or therein) in favor any transaction of the Agenttype described in the definition of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto;
(w) any default, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement termination or such other Loan Document)
7.15. An event (such event, an “Offnon-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect renewal of Off-Balance Sheet Liabilities licenses of the Parent, any Subsidiary Borrowers which in the aggregate accounted for thirty percent (30%) or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result more of the non-payment revenues of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and the Borrowers, on a consolidated basis, in the previous Fiscal Year; or
(x) such Off-Balance Sheet Trigger Event shall not any Loan Party is criminally indicted or convicted under any law that may reasonably be remedied or waived within the later expected to occur of the tenth day after the occurrence thereof or the expiry date lead to a forfeiture of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation Property of such Off-Balance Sheet Liabilities as Loan Party having a result fair market value in excess of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities$1,000,000.
Appears in 1 contract
Samples: Credit Agreement (Action Performance Companies Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 8.1 Nonpayment of any principal payment on any Note when due and payable.
8.2 Nonpayment of (i) interest upon any Note, any Facility Fee, Administrative Agent's Fee or Facility Letter of Credit Fee, under any of th Loan Documents within five (5) Business Days after the same becomes due or (ii) any other payment Obligation under any of the Loan Documents within five (5) Business Days of Borrower's receipt of written notice.
8.3 The breach of any of the terms or provisions of Sections 7.1(iii), (iv) and (v), 7.2(ii), 7.6(i) (to the extent such breach relates to a cancellation of an insurance policy or Borrower's failure to pay the required premium to renew a policy), 7.6(ii), 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.18, 7.20, 7.21 or 7.25, or a breach of any of the terms or provisions of Section 7.1 (other than as set forth above) which remains uncured for ten (10) business days.
8.4 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this AgreementAgreement (other than Section 6.24 and a Property Breach unless such breach causes a Default under another provision of this Article VIII), any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. 8.5 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII8.1, 8.2, 8.3 or 8.4 and other than a Property Breach) or any other Credit Party of any of the other terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days or ninety (90) days, for a breach which is curable but cannot be cured within 30 days but is being diligently cured, after the earlier to occur of the breach or receipt of written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 8.6 Failure of the ParentBorrower, any Qualifying Investment Affiliate or Special Qualifying Investment Affiliate (to the extent the Indebtedness is recourse to Borrower or any Subsidiary Subsidiary) or any of its Subsidiaries to pay when due (after applicable cure periods) any Material Indebtedness (beyond the applicable grace period with respect theretoaggregating in excess of $5,000,000 for which liability is not limited to specific pledged collateral, if any); or the default by the Parent$50,000,000 for which liability is limited to specific pledged collateral.
8.7 The Borrower, the Borrower any Qualifying Investment Affiliate or Special Qualifying Investment Affiliate that is not a Subsidiary having a Market Capitalization which is more than 3% of Market Capitalization, or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) having more than $10,000,000 of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Market Capitalization shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 8.7, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.78.8 or (vii) not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a 8.8 A receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower, any Qualifying Investment Affiliate or such Material Foreign Special Qualifying Investment Affiliate that is not a Subsidiary having a Market Capitalization which is more than 3% of Market Capitalization, or any Subsidiary having more than $10,000,000 of Market Capitalization or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv8.7(iv) shall be instituted against the Borrower any Credit Party Qualifying Investment Affiliate or Special Qualifying Investment Affiliate or any Material Foreign such Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. 8.9 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Properties of the Borrower and its Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment Affiliates which, when taken together with all other Property of the Borrower and its Subsidiaries, Qualifying Investment Affiliates and Special Qualifying Investment Affiliates so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion of their Property.
8.10 The Parent, the Borrower or any Subsidiary of its Subsidiaries or any Qualifying Investment Affiliate or Special Qualifying Investment Affiliate shall fail within 60 sixty (60) days to pay, bond or otherwise discharge one or more (i) any judgments or orders for the payment of money in excess of an amount which, when added to all other judgments or orders outstanding against the Borrower or any Subsidiary or any Qualifying Investment Affiliate would exceed $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to which have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) been stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under faith, unless the Parent’s or any Subsidiary’s insurance policiesliability is insured against and the insurer has not challenged coverage of such liability.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 8.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan Plan, the PBGC or other party that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability or is in default of payments to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification)) or amounts in default, exceeds $20,000,000250,000 or requires payments exceeding $100,000 per annum.
7.12. 8.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan or the PBGC or other party that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000250,000 per year.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining A Reportable Event shall occur with respect to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environmenta Plan, or (ii) violate any Environmental Law, which, Plan shall incur an accumulated funding deficiency (as defined in Section 412 of the case Code or Section 302 of an event described in clause (i) or clause (iiERISA), has resulted whether or not waived, or fail to make a required installment payment on or before the due date under Section 412 of the Code or Section 302 of ERISA, or (iii) Borrower or a member of the Controlled Group shall have engaged in liability to a nonexempt prohibited transaction under Section 4975 of the ParentCode or Section 406 of ERISA, the or (iv) Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document member of the Controlled Group shall fail to remain in full force or effect against any Credit Party party thereto (except pay when due an amount which it shall have become liable to pay to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) PBGC, or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the ParentPlan, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet LiabilitiesMultiemployer Plan, or (yv) such investors Borrower or any member of the Controlled Group shall require have received a notice from the amortization PBGC of its intention to terminate a Plan or liquidation to appoint a trustee to administer a Plan, or Multiemployer Plan, or a condition exists by reason of such Off-Balance Sheet Liabilities as which the PBGC would be entitled to obtain a result of such Off-Balance Sheet Trigger Eventdecree adjudicating that a Plan must be terminated, or (iivi) causes the replacement any other event or substitution condition shall occur or exist with respect to any employee benefit plan (as defined in Section 3(3) of ERISA) or Plan or any Multiemployer Plan, which could reasonably be expected to subject Borrower or any member of the ParentControlled Group to any tax, penalty or other liability or the imposition of any Subsidiary lien or security interest on Borrower or any SPV as member of the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; Controlled Group, provided, however, that this Section 7.15 any event or circumstance in Sections 8.13(i) through (vi) shall not apply on any date with respect only be an Event of Default if it would result in liability to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity Borrower in excess of the facility evidencing such Off-Balance Sheet Liabilities.$250,000 per year; or
Appears in 1 contract
Samples: Unsecured Revolving Credit Agreement (Centerpoint Properties Trust)
Defaults. The occurrence of any one or more of the following events shall constitute a "Default" hereunder:
7.1. Any (a) any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary Loan Party to the Lenders any Lender or the Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document of the foregoing shall be materially false in any material respect on the date as of which made made;
(b) nonpayment, when due (whether upon demand or deemed made.
7.2. Nonpayment of (i) principal otherwise), of any Revolving Loan when dueprincipal, (ii) any interest, fee, Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligation owing under any of the Loan Documents within five Document; A&R CREDIT AGREEMENT
(5c) Business Days after such interest, fee or other Obligation becomes due.
7.3. The the breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Loan Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.36.2, 6.3(a), 4.1.3 6.16 through 6.23 or clauses 6.25 through 6.33;
(id) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower any Loan Party (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) Section 6.1, 6.3 (other than Section 6.3(a)), 6.4 through 6.15, or 6.24 of this Agreement or any other Loan Document to which it is a party which is not remedied within five days from the earlier of (ix) five the date on which any Loan Party had actual or constructive knowledge of such breach or (5y) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after date on which such Loan Party receives written notice from the Agent or any Lender to or (ii) any other Section of this Agreement which is not remedied within fifteen days after the Borrower earlier of (x) the date on which any Loan Party had actual or constructive knowledge of such breach or (y) the date on which such Loan Party receives written notice from the Agent or any Lender;
(e) failure of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary Loan Party to pay when due any Material Indebtedness (beyond the applicable grace period with respect theretoor a default, if any); breach or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of other event occurs under any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or Agreement of any other event shall occur or condition existLoan Party, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary Loan Party shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary Loan Party shall not pay, or admit in writing its inability to pay, its debts generally as they become due.;
7.6. Any Credit (f) any Loan Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion portion of its PropertyProperty which constitutes a Substantial Portion, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 subsection (f) or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.subsection (g) below;
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, (g) a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit any Loan Party or such Material Foreign Subsidiary or any Substantial Portion portion of its PropertyProperty which constitutes a Substantial Portion, or a proceeding described in Section 7.6(ivsubsection (f)(iv) of Article VII shall be instituted against any Credit Loan Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty consecutive days.;
7.8. The Parent(h) any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of any Loan Party which, when taken together with all other Property of any Loan Party so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion; A&R CREDIT AGREEMENT
(i) any loss, theft, damage or destruction of any item or items of Collateral or other property of any Loan Party occurs which could reasonably be expected to cause a Material Adverse Effect and is not adequately covered by insurance;
(j) any Loan Party shall fail within 60 thirty days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s)judgments or orders, in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or by proper proceedings diligently pursued;
(bk) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.;
7.11. The Parent (l) the Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $1,000,000 or any Reportable Event shall occur in connection with any Plan;
(m) any Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent such Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.1,000,000 or requires payments exceeding $1,000,000 per annum;
7.12. The Parent (n) a Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent such Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.1,000,000;
7.13. The Parent, the Borrower or (o) any Subsidiary Loan Party shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary Loan Party or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect (as determined by Agent in liability its Permitted Discretion);
(p) the occurrence of any "default", as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided;
(q) any Guaranty shall fail to the Parent, the Borrower remain in full force or effect or any Subsidiary action shall be taken to discontinue or to assert the invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Guaranty to A&R CREDIT AGREEMENT 77 which it is a party, or any Guarantor shall deny that it has any further liability under any Guaranty to which it is a party, or shall give notice to such effect;
(r) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in an amount equal any Collateral purported to $20,000,000 be covered thereby, except as permitted by the terms of any Collateral Document, or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan any Collateral Document shall fail to remain in full force or effect against or any Credit action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or any Loan Party party thereto shall fail to comply with any of the terms or provisions of any Collateral Document;
(except s) any material provision of any Loan Document for any reason ceases to the extent such Credit Party has been released from its obligations thereunder be valid, binding and enforceable in accordance with this Agreement its terms (or such other any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Document Documents has expired ceased to be or terminated otherwise is not valid, binding and enforceable in accordance with its terms);
(t) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason the representations and warranties set forth in Section 5.17 (other than those enumerated in the first parenthetical above)Plan Assets; the Liens created by the Collateral Documents Prohibited Transactions) shall at any time not constitute a valid be true and perfected Lien on correct;
(u) nonpayment by any Borrower or any of its Subsidiaries of any Rate Management Obligation when due or the Collateral intended to be covered thereby (to the extent perfection breach by filingany Borrower or any of its Subsidiaries of any term, registration, recordation, provision or possession is required herein condition contained in any Rate Management Transaction or therein) in favor any transaction of the Agent, having type described in the priority contemplated by the Collateral Documents definition of "Rate Management Transactions," whether or not any Lender or Affiliate of a Lender is a party thereto; or
(except v) any Loan Party is criminally indicted or convicted under any law that may reasonably be expected to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect lead to a forfeiture of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation Property of such Off-Balance Sheet Liabilities as Loan Party having a result fair market value in excess of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities500,000.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, GPU or the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business 40 Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Article VI Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.
7.4. 7.4 The breach by the Borrower or GPU (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any of its Subsidiaries or GPU or any Material GPU Subsidiary to pay when due any Indebtedness aggregating in excess of $5,000,000 in the case of the Borrower or any of its Subsidiaries, $20,000,000 in the case of GPU or $20,000,000 in the case of any Material Indebtedness GPU Subsidiary (beyond the applicable grace period with respect thereto, if any"Material Indebtedness"); or the default by the ParentBorrower, the Borrower any of its Subsidiaries, GPU or any Material GPU Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the ParentBorrower, the Borrower any of its Subsidiaries, GPU or any Material GPU Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the ParentBorrower, the Borrower any of its Subsidiaries, GPU or any Material GPU Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower, any of its Subsidiaries, GPU or any Material Foreign GPU Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of the Borrower, any Credit Party of its Subsidiaries, GPU or any Material Foreign GPU Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower, any of its Subsidiaries, GPU or such any Material Foreign GPU Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against the Borrower, any Credit Party of its Subsidiaries, GPU or any Material Foreign GPU Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. 7.8 The ParentBorrower, the Borrower any of its Subsidiaries, GPU or any Material GPU Subsidiary shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 in the case of the Borrower and its Subsidiaries or $20,000,000 in the case of GPU and the Material GPU Subsidiaries (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or .
7.9 The Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $5,000,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.10 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0005,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0005,000,000.
7.13. The Parent, 7.12 Any Change in Control shall occur.
7.13 Nonpayment by the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining obligation with respect to the release by the Parenta Rate Management Transaction in excess of $5,000,000 when due.
7.14 After its delivery, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document GPU Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in unenforceability of the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGPU Guaranty, or possession is required herein or therein) in favor GPU shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities provisions of the ParentGPU Guaranty, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of GPU shall deny that it has any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto further liability under the agreement evidencing such Off-Balance Sheet LiabilitiesGPU Guaranty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Samples: Credit Agreement (Gpu Inc /Pa/)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made by the Company or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit Extension, or in any certificate or information delivered in writing in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed madeand shall not be remedied within three Business Days after written notice from the Agent.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon on any Revolving Loan or of any Commitment Feefacility fee, LC Fee or any other Obligations payment obligations under any of the Loan Documents within five (5) three Business Days after the same becomes due (unless such interest, fee or other Obligation becomes dueLoan has been rolled over as provided in this Agreement).
7.3. 7.3 The breach by (i) the Parent or the Borrower or any Guarantor of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of 6.19 which is not remedied within three Business Days after written notice from the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementAgent.
7.4. 7.4 The breach by the Borrower or any Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 15 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Swap Agreement Obligations (valued by reference to the amount of the Net Mark-to-Market Exposure) aggregating in excess of $25,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, in the case of any such default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolventinsolvent entity, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and could reasonably be expected to have a Material Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect25,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due after the expiration of any applicable grace period an amount or amounts aggregating in excess of $125,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $125,000,000 (a “Material Plan”) shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or PBGC shall institute proceedings under which it is likely to prevail under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the date of such notification)PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (to incur a current payment obligation in excess of $125,000,000.
7.11 The occurrence of any Change in Control.
7.12 Any Guaranty shall fail to remain in full force or effect or any action shall be taken as to discontinue or assert the invalidity or unenforceability of any Guaranty or any Guarantor denies that it has any further liability under any Guaranty to which it is a whole) to all Multiemployer Plans which are then in reorganization party, or being terminated have been or will be increased, in the aggregate, over the amounts contributed gives notice to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000effect.
7.13. The Parent7.13 Any Collateral Document shall for any reason (other than solely as the result of an act or omission of the Agent or a Lender) fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby, except as permitted by the Borrower terms of this Agreement or any Subsidiary shall (i) be the subject of Collateral Document, or, due to any proceeding or investigation pertaining to the release action by the Parent, the Borrower Company or any Subsidiary or of its Subsidiaries not consented to by the Required Lenders, any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Lenders to discontinue or to assert that its obligations thereunder are discontinuedthe invalidity or unenforceability of any Collateral Document, invalid or unenforceable the Company or any Guarantor shall fail to comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided for any reason (other than those enumerated in the first parenthetical above); the Liens created by the applicable Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Facility Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive, 6.19 or Section 6.24 6.20; or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of Section 6.1 which is not remedied within five Business Days after written notice from the Agent or any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementLender.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement 66 under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money (except to the extent covered by insurance as to which the insurer has not disclaimed coverage) in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made by the Company or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit Extension, or in any certificate or information delivered in writing in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed madeand shall not be remedied within three Business Days after written notice from the Agent.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon on any Revolving Loan or of any Commitment Feefacility fee, LC Fee or any other Obligations payment obligations under any of the Loan Documents within five (5) three Business Days after the same becomes due (unless such interest, fee or other Obligation becomes dueLoan has been rolled over as provided in this Agreement).
7.3. 7.3 The breach by (i) the Parent any Borrower or the Borrower any Guarantor of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of 6.19 which is not remedied within three Business Days after written notice from the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementAgent.
7.4. 7.4 The breach by the any Borrower or any Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 15 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Swap Agreement Obligations (valued by reference to the amount of the Net Xxxx-to-Market Exposure) aggregating in excess of $25,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, in the case of any such default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolventinsolvent entity, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and could reasonably be expected to have a Material Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect25,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due after the expiration of any applicable grace period an amount or amounts aggregating in excess of $1,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $1,000,000 (a “Material Plan”) shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or PBGC shall institute proceedings under which it is likely to prevail under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the date of such notification)PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (to incur a current payment obligation in excess of $1,000,000.
7.11 The occurrence of any Change in Control.
7.12 Any Guaranty shall fail to remain in full force or effect or any action shall be taken as to discontinue or assert the invalidity or unenforceability of any Guaranty or any Guarantor denies that it has any further liability under any Guaranty to which it is a whole) to all Multiemployer Plans which are then in reorganization party, or being terminated have been or will be increased, in the aggregate, over the amounts contributed gives notice to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000effect.
7.13. The Parent7.13 Any Collateral Document shall for any reason (other than solely as the result of an act or omission of the Agent or a Lender) fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby, except as permitted by the Borrower terms of this Agreement or any Subsidiary shall (i) be the subject of Collateral Document, or, due to any proceeding or investigation pertaining to the release action by the Parent, the Borrower Company or any Subsidiary or of its Subsidiaries not consented to by the Required Lenders, any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Lenders to discontinue or to assert that its obligations thereunder are discontinuedthe invalidity or unenforceability of any Collateral Document, invalid or unenforceable the Company or any Guarantor shall fail to comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided for any reason (other than those enumerated in the first parenthetical above); the Liens created by the applicable Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one three Business Day Days after written notice from the Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation becomes written notice from the Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.1, 6.2, 6.3, 6.4, 6.5, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. 7.4 The breach by the any Borrower or Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $5,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any Subsidiary portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to have a Material Adverse Effect.
7.9 The Company or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or 5,000,000 in aggregate amount for the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse EffectCompany and its Subsidiaries, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant fail to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in pay when due an amount which, when aggregated with all other or amounts required to be paid to Multiemployer Plans by the Parent or any other member aggregating in excess of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group 5,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of become liable to pay under Title IV of ERISA, if as ; or notice of intent to terminate a result Single Employer Plan with Unfunded Liabilities in excess of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to 5,000,000 (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feefacility fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.1, 6.2, 6.3, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.
7.4. 7.4 The breach by the any Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any) any Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Company or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Company or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $1,000,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentCompany, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. 7.12 Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession any Guarantor shall deny that it has any further liability under any Guaranty to which it is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section Sections 6.24 or 6.25 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (United Stationers Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Letter of Credit, any Guaranty or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan or Note or L/C Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower or any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1, 6.2, 6.3(a), 6.10, 6.11, 6.12, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20, 6.21, 6.22 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.23.
7.4. 7.4 The breach by the Borrower or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after receipt of written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness equal to or exceeding $25,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or is outstandinggoverned, or any other event (including the occurrence of any “Amortization Event” or event of like import in connection with the Receivables Purchase Facility, but excluding a redemption of Receivables and Related Security pursuant to a “clean-up call” event) shall occur or condition exist, (i) the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity maturity, or any commitment to lend (ii) if such default or event shall occur or such condition exist under any such agreement Receivables Purchase Documents, the effect of which is to be terminated prior (A) terminate, or permit the investors thereunder to its stated expiration date; terminate, the reinvestment of collections or proceeds of Receivables and Related Security under any Material Indebtedness Receivables Purchase Document (other than a termination resulting solely from the request of the Parent, the Borrower or any Subsidiary of its Subsidiaries) or (B) cause the replacement of, or permit the investors thereunder to replace, the Person then acting as servicer for the related Receivables Purchase Facility; or any Indebtedness evidenced by or relating to the 2011 Subordinated Notes, the 2013 Subordinated Notes, the Trust PIERS, the New Trust PIERS, or any Permitted Subordinated Debt, or any other Indebtedness of the Borrower or any of its Subsidiaries equal to or exceeding $25,000,000 in the aggregate, shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment payment), or specified mandatory prepayment) becomes manditorily redeemable, prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due. Notwithstanding anything to the contrary in this Section 7.5, no default in the performance of any term, provision or condition contained in the Indenture dated as of November 4, 2003 among Genesis Health Venture, Inc. (n/k/a NeighborCare), the guarantors parties hereto and the Bank of New York, as Trustee, as the same may be supplemented, amended or otherwise modified from time to time (the “NeighborCare Indenture”), pursuant to which the NeighborCare Notes were issued shall constitute a Default for the purpose of this Section 7.5 unless (i) the obligations under the NeighborCare Indenture are accelerated or (ii) such default could otherwise reasonably be expected to have a Material Adverse Effect.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal United States bankruptcy laws as now or hereafter in effecteffect or cause or allow any similar event to occur under any bankruptcy or similar law or laws for the relief of debtors as now or hereafter in effect in any other jurisdiction, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator liquidator, monitor or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal United States bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its property or its debts under any law relating to bankruptcy, insolvency or reorganization or compromise of debt or relief of debtorsdebtors as now or hereafter in effect in any jurisdiction, or any organization, arrangement or compromise of debt under the laws of its jurisdiction of incorporation or fail to promptly file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith faith, or consent to or acquiesce in, any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed (either privately or by a court) for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6 (d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect25,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $15,000,000 or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any PlanReportable Event, other than a standard termination under Section 4041(b) the occurrence of ERISA, or a contribution failure has occurred with respect to any Plan sufficient which may reasonably be expected to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect, shall occur in connection with any Plan.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00015,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00015,000,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary such Subsidiary, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any environmental, health or safety law or regulation of any Governmental Authority, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. 7.14 Any Guaranty or other Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, Guaranty or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) or any Guarantor shall occur which (i) permits the investors fail to perform its obligations under or purchasers in respect of Off-Balance Sheet Liabilities otherwise comply with any of the Parentterms or provisions of any Guaranty to which it is a party, any Subsidiary or any SPV Guarantor shall deny that it has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors effect.
7.15 Any Change in Control shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Defaults. The occurrence of any one or more of the following events in respect of any Borrower shall constitute a DefaultDefault with respect to such Borrower:
7.1. Any representation or warranty made or deemed made by or on behalf of such Borrower (including any representation or warranty deemed made by such Borrower as to one of its Subsidiaries) to the ParentLenders, the Borrower or any Subsidiary to the Lenders Issuing Banks or the Agent under or in connection with this Agreement, any Collateral Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment Such Borrower or, in the case of CILCORP, CILCORP or any of its Subsidiaries, shall fail to pay in respect of any Obligation owing by it (i) principal of any Revolving Loan when due, or (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Facility Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the such Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.19, 6.20, 6.21 and 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the such Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Collateral Document to which it is a party which is not remedied within fifteen (15) days after the earlier to occur of (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the such Borrower or (ii) an Authorized Officer otherwise becoming aware of any other such breach.
7.5. Failure of such Borrower or, in the Parentcase of CILCORP, the Borrower CILCORP or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries), to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by such Borrower or, in the Parentcase of CILCORP, the Borrower CILCORP or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, Agreement or any other event shall occur or condition existexist (except for a “Triggering Event” under IP’s 11½% Mortgage Bonds due 2010 which does not also cause an event of default thereunder), the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of such Borrower or, in the Parentcase of CILCORP, the Borrower CILCORP or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereofthereof (except in the case of or related to a “Triggering Event” under IP’s 11½% Mortgage Bonds due 2010 which does not also cause an event of default thereunder); or such Borrower or, in the Parentcase of CILCORP, the Borrower CILCORP or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries), shall not pay, or admit in writing its inability to pay, its debts generally as they become due; provided that no Default shall occur under this Section 7.5 as a result of (i) any notice of voluntary prepayment delivered by such Borrower or any Subsidiary with respect to any Indebtedness, or (ii) any voluntary sale of assets by such Borrower or any Subsidiary permitted hereunder as a result of which any Indebtedness secured by such assets is required to be prepaid.
7.6. Any Credit Party Such Borrower or, in the case of CILCORP, CILCORP or any Material Foreign Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries or an SPC) shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7, or (vii) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of any Credit Party such Borrower or, in the case of CILCORP, CILCORP or any Material Foreign Subsidiaryof its Subsidiaries (other than a Project Finance Subsidiary or an SPC ), a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or, in the case of CILCORP, CILCORP or such Material Foreign any of its Subsidiaries (other than a Project Finance Subsidiary or an SPC) or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party such Borrower or, in the case of CILCORP, CILCORP or any Material Foreign of its Subsidiaries (other than a Project Finance Subsidiary or an SPC) and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of such Borrower or, in the case of CILCORP, CILCORP or any of its Subsidiaries (other than Project Finance Subsidiaries or an SPC), which, when taken together with all other Property of such Borrower or, in the case of CILCORP, CILCORP and its Subsidiaries (other than Project Finance Subsidiaries or an SPC), so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion of its Property.
7.9. Such Borrower or, in the case of CILCORP, CILCORP or any of its Subsidiaries (other than Project Finance Subsidiaries or an SPC) shall fail within 60 45 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (net of any amount covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change An ERISA Event shall have occurred that, in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by the Parent result in liability of such Borrower, its Subsidiaries or any other member of the Commonly Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is Entity in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the an aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Credit Agreement (Central Illinois Public Service Co)
Defaults. The occurrence of any one or more of the following events shall constitute a "Default" hereunder:
7.1. Any (a) nonpayment, (i) when due (whether upon demand or otherwise) of any principal owing under any of the Loan Documents, or (ii) within 2 Business Days of the due date (whether upon demand or otherwise) of any interest, fee, Reimbursement Obligation or any other payment obligation owing under any of the Loan Documents;
(b) any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary Loan Party to the Lenders any Lender or the Agent under or in connection with this Agreement, any other Loan Document (other than any Export-Import Loan Document), any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document of the foregoing shall be materially false in any material respect on the date as of which made or deemed made.;
7.2. Nonpayment of (ic) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Loan Party of any of the terms or provisions of any of Section 4.1.1 Sections 6.2, 6.15 through 6.22 or 6.24 through 6.31;
(to d) the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower any Loan Party (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) Sections 6.1, 6.3 through 6.7, 6.9 through 6.14, or 6.23 of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days 5 days after the occurrence thereof with respect to any earlier of such breach of Section 6.1 and (ii) thirty (30) days after or written notice from the Agent or any Lender to or (ii) any other Section of this Agreement which is not remedied within 30 days after receipt by the Borrower Company of written notice from the Agent or any Lender;
(e) (i) failure of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary Loan Party to pay when due any Material Indebtedness Indebtedness; (beyond the applicable grace period with respect theretoii) a default, if any); breach or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of other event occurs under any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or Agreement of any other event shall occur or condition existLoan Party, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement (other than any Export-Import Loan Document) to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or (iii) any Material Indebtedness of the Parent, the Borrower or any Subsidiary Loan Party shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or (iv) any Subsidiary Loan Party shall not pay, or admit in writing its inability to pay, its debts generally as they become due.;
7.6. Any Credit (f) any Loan Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws Bankruptcy Code as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, partnership or partnership limited liability company action to authorize or effect any of the foregoing actions set forth in this Section 7.6 subsection (f) or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.subsection (g) below;
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, (g) a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit any Loan Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(ivsubsection (f)(iv) of Article VII shall be instituted against any Credit Loan Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty consecutive days.;
7.8. The Parent(h) any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of any Loan Party which, when taken together with all other Property of any Loan Party so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion;
(i) any loss, theft, damage or destruction of any item or items of Collateral or other property of any Loan Party occurs which could reasonably be expected to cause a Material Adverse Effect and is not adequately covered by insurance;
(j) any Loan Party shall fail within 60 30 days when due to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 2,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s)judgments or orders, in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or by proper proceedings diligently pursued;
(bk) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.;
7.11. The Parent (i) the Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $30,000,000, or (ii) any Reportable Event shall occur;
(m) a Loan Party or any other member of the a Controlled Group has incurred or shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by Plan;
(n) the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject occurrence of any proceeding "Default" or investigation pertaining to the release by the Parent, the Borrower or "Event of Default" as defined in any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with other than this Agreement or such other any Export-Import Loan Document) or, for any Loan Document (other than any Export-Import Loan Document) in which "Default" or "Event of Default" is not defined, the breach of any of the terms or provisions of such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Export-Import Loan Document)
7.15. An event (such event) , an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors default or purchasers in respect breach continues beyond any period of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.;
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default:
7.1. 7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or written information delivered in connection with this Agreement or any other Loan Document shall (i) if subject to materiality qualifications, be false in any material respect on the date as of which made or deemed madeconfirmed or (ii) if not subject to materiality qualifications, be materially false on the date as of which made or confirmed.
7.2. 7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or of any Commitment Fee, Standby LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3, 6.4, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.196.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20.6.21.
7.4. 7.4. The breach by the Borrower (other than a breach which that constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which that is not remedied within (i) five (5) Business Days 30 days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower becomes aware of any other such breach.
7.5. 7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6. The Borrower or any Material Foreign Subsidiary with assets of more than $20,000,00050,000,000 (as shown on the Borrower’s most recent financial statement delivered pursuant to Section 6.1) shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign any Subsidiary with assets of more than $20,000,00050,000,000 (as shown on the Borrower’s most recent financial statement delivered pursuant to Section 6.1) or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries that, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. 7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 10,000,00050,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregateaggregate (excluding any amounts covered by insurance), or (ii) nonmonetary judgments or orders whichthat, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith.
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $10,000,00050,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that, in full or otherwise fully covered (subject the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to any applicable deductible) result in a Material Adverse Effect.
7.11. 7.11. Nonpayment by third-party insurers under the Parent’s Borrower or any Subsidiary’s insurance policiesSubsidiary of any Rate Management Obligation when due or the breach by the Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto, and such nonpayment or breach shall continue after the applicable grace period, if any, specified in the documents related to such Rate Management Transaction.
7.97.12. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.107.12. Any Change in Control shall occur.
7.117.13. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject occurrence of any proceeding “default”, as defined in any Loan Document (other than this Agreement) or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person breach of any toxic of the terms or hazardous waste or substance into the environment, or provisions of any Loan Document (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (iiother than this Agreement), has resulted in liability to the Parent, the Borrower which default or breach continues beyond any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithperiod of grace therein provided.
7.14. 7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) effect, or any Credit Party Collateral Document shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute fail to create a valid and perfected Lien on first priority interest in the Collateral intended collateral purported to be covered thereby (to except as permitted by the extent perfection by filing, registration, recordationterms thereof), or possession is required herein any action shall be taken to discontinue or therein) in favor to assert the invalidity or unenforceability of any Guaranty or Collateral Document, or any Guarantor or Pledgor shall fail to comply with any of the Agentterms or provisions of any Guaranty or Collateral Document to which it is a party, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV Guarantor or Pledgor shall deny that it has any further liability under any Guaranty or Collateral Document to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilitieseffect; provided, however, in the event that a Guarantor merges into, consolidates, liquidates, winds up or dissolves itself as allowed under the terms of this Agreement, such Guarantor shall be deemed released under the terms of its Guaranty and shall not be in default under the terms of this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.7.14. ARTICLE VIII
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Defaults. The occurrence of any one or more of the following events in respect of any Borrower shall constitute a DefaultDefault with respect to such Borrower:
7.1. Any representation or warranty made or deemed made by or on behalf of such Borrower (including any representation or warranty deemed made by such Borrower as to one of its Subsidiaries) to the ParentLenders, the Borrower or any Subsidiary to the Lenders Issuing Banks or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment Such Borrower or, in the case of the Company, the Company or any of its Subsidiaries, shall fail to pay (i) principal of any Revolving Loan when due, or (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Facility Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the such Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.17.
7.4. The breach by the such Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (15) days after the earlier to occur of (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the such Borrower or (ii) an Authorized Officer otherwise becoming aware of any other such breach.
7.5. Failure of the Parent, the such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries), to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries) in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, Agreement or any other event shall occur or condition existexist (except for a “Triggering Event” under IP’s 11½% Mortgage Bonds due 2010 which does not also cause an event of default thereunder), the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the such Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries), shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereofthereof (except in the case of or related to a “Triggering Event” under IP’s 11½% Mortgage Bonds due 2010 which does not also cause an event of default thereunder); or such Borrower or, in the Parentcase of the Company, the Borrower or any Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries), shall not pay, or admit in writing its inability to pay, its debts generally as they become due; provided that no Default shall occur under this Section 7.5 as a result of (i) any notice of voluntary prepayment delivered by such Borrower or any Subsidiary with respect to any Indebtedness, or (ii) any voluntary sale of assets by such Borrower or any Subsidiary permitted hereunder as a result of which any Indebtedness secured by such assets is required to be prepaid.
7.6. Any Credit Party Such Borrower or any Material Foreign Subsidiary of its Subsidiaries (other than Project Finance Subsidiaries or an SPC) shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7, or (vii) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
7.7. Without the application, approval or consent of any Credit Party such Borrower or any Material Foreign Subsidiaryof its Subsidiaries (other than a Project Finance Subsidiary or an SPC ), a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or such Material Foreign any of its Subsidiaries (other than a Project Finance Subsidiary or an SPC) or any Substantial Portion of its PropertyProperty or the Property of any of its Subsidiaries (other than a Project Finance Subsidiary or an SPC), or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party such Borrower or any Material Foreign of its Subsidiaries (other than a Project Finance Subsidiary or an SPC) and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of such Borrower or, in the case of the Company, any of its Subsidiaries (other than Project Finance Subsidiaries or an SPC), which, when taken together with all other Property of such Borrower and/or, in the case of the Company, any such Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. Such Borrower or, in the case of the Company, any of its Subsidiaries (other than Project Finance Subsidiaries or an SPC) shall fail within 60 45 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (net of any amount covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change An ERISA Event shall have occurred that, in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by result in liability of the Parent Company, its Subsidiaries or any other member of the Commonly Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is Entity in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the an aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00050,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Central Illinois Public Service Co)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, the Working Capital Credit Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Article VI, Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.24.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or any amounts under any interest rate, fuel management or hedging agreement aggregating in excess of $5,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyFinancial Obligation"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness Financial Obligation was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement Financial Obligation to cause, such Material Indebtedness Financial Obligation to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness Financial Obligation of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelvemonth period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $1,000,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $500,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default", as defined in any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in this Agreement) or the first parenthetical above); the Liens created by the Collateral Documents shall at breach of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount Loan Document (other than this Agreement), which default or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur breach continues beyond any period of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (ia) principal of any Revolving Loan when due, (ii) or any Reimbursement Obligation within one Business Day after the same becomes due, when due or (iiib) any interest upon any Revolving Loan Loan, any Facility Fee or LC Fee, or any Commitment Fee, LC Fee or other Obligations obligation under any of the Loan Documents within five three (53) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. (a) The breach by (i) the Parent REIT or the Borrower any of its Subsidiaries of any of the terms or provisions of Section 6.2, 6.3(a), 6.4(b)(i) (solely with respect to the REIT, any of Sections 6.2 other Parent Guarantor or 6.3 the Borrower), 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17 or 6.19; or (b) the breach by the REIT or any of Sections 6.10 through 6.16its Subsidiaries of Section 6.4(b)(i) (solely with respect to any Loan Party (other than the REIT, inclusive, Sections 6.18 through 6.22, inclusive, any other Parent Guarantor or Section 6.24 the Borrower)) or (ii) by any Credit Party of any of the terms or provisions of any Section 6.1 which is not remedied within ten (10) Business Days after the earlier of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) any Authorized Officer becoming aware of this Section 7.3), 4.1.3 or clauses (i) or any such breach and (ii) the Administrative Agent notifying the Borrower of Section 4.1.4 of the Security Agreementany such breach.
7.4. The breach by the Borrower REIT or any of its Subsidiaries (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (a) any Authorized Officer becoming aware of any such breach and (b) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. (a) Failure of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries to pay when due (after giving effect to all grace periods) any payment (whether of principal, interest or any other amount) in respect of any Material Indebtedness Indebtedness, (beyond the applicable grace period with respect thereto, if any); or b) the default by the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition under this clause (b) is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; , or (c) any portion of Material Indebtedness of the Parent, the Borrower REIT or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The REIT, the Borrower, any Eligible Property Entity or any Material Foreign Subsidiary shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its PropertyProperties, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate formal corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7; or (g) admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the REIT, the Borrower, any Credit Party Eligible Property Entity or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the REIT, the Borrower, any Eligible Property Entity or such any Material Foreign Subsidiary or any Substantial Portion of its PropertyProperties, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against the REIT, the Borrower, any Credit Party Eligible Property Entity or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the REIT or any of its Subsidiaries which, when taken together with all other Property of the REIT, the Borrower and the REIT’s Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any Subsidiary shall fail within 60 days to paysuch action occurs, bond or otherwise discharge one constitutes a Substantial Portion.
7.9. One or more (ia) judgments or orders for the payment of money in excess of $10,000,000 100,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (iib) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not shall remain unstayed, undischarged, undismissed, unvacated or unsatisfied for a period of thirty (30) consecutive days.
(a) stayed on appeal With respect to a Plan, the REIT, the Borrower or otherwise being appropriately contested an ERISA Affiliate is subject to a lien in good faith excess of $100,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesa Material Adverse Effect.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.107.11. Any Change in of Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to other than as the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or result of the application of the specific provisions of such Loan Document has expired or terminated in accordance with its termsDocument) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession any Guarantor shall deny that it has any further liability under any Guaranty to which it is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.16.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent M&I under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be prove to have been false in any material respect on the date as of which the time when made or deemed madegiven.
7.26.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.36.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 5.2 and 5.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreementand including 5.25.
7.46.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII6.1, 6.2 or 6.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.M&I.
7.56.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness in excess of $1,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness in excess of $1,000,000 in the aggregate was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries in excess of $1,000,000 in the aggregate shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.66.6. Any Credit Party The Borrower or any Material Foreign Subsidiary shall of its Subsidiaries shall: (ia) have an order for relief entered with respect to it under the Federal federal bankruptcy laws as now or hereafter in effect, ; (iib) make a general take an assignment for the benefit of creditors, ; (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, ; (ivd) institute any proceeding seeking an order for relief under the Federal federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it; (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 6.6 or (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.76.7.
7.76.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv6.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 thirty (30) consecutive days.
7.86.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
6.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, 1,000,000 which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. (a) Any formal step is taken Reportable Event (as defined in ERISA) shall have occurred which constitutes grounds for the termination of any Plan by the PBGC or for the appointment of a trustee to terminate administer any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, terminated within the meaning of Title IV of ERISA, if as or a result of such reorganization trustee shall be appointed by the appropriate court to administer any Plan, or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as PBGC shall institute proceedings to terminate any Plan or to appoint a whole) trustee to all Multiemployer Plans which are then in reorganization administer any Plan, or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries or any trade or business which together with the Borrower or any of its Subsidiaries would be treated as a single employer under Section 4001 of ERISA shall withdraw in whole or in part from a multiemployer Plan; and (ib) the aggregate amount of the Borrower's or any Subsidiary's liability for all such occurrences, whether to a Plan, the PBGC or otherwise, may exceed $1,000,000, and such liability is not covered for the benefit of the Borrower or its Subsidiaries by insurance
6.11. The Borrower or any of its Subsidiaries shall be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any federal, state or local environmental, health or safety law or regulation, which, in either case, could have a Material Adverse Effect.
6.12. Any Change in Control shall occur.
6.13. Any conservator or receiver shall be appointed for the case Borrower or any Banking Subsidiary under the Financial Institutions Reform, Recovery and Enforcement Act of an event described in clause (i) 1989, as it may be amended or clause (ii)supplemented from time to time.
6.14. Any Banking Subsidiary shall cease to be insured under the Federal Deposit Insurance Act of 1959, has resulted in liability to the Parentas amended, or a cease and desist order shall be issued against the Borrower or any Subsidiary in an amount equal pursuant to $20,000,000 12 U.S.C. 1818(b) or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its termsc) or any Credit Party similar applicable provision of state law.
6.15. The Borrower or any Subsidiary shall assert that its obligations thereunder are discontinued, invalid enter into any Capital Commitment with any federal or unenforceable for state regulator or any reason (other than those enumerated such regulator shall require the Borrower or any Subsidiary to submit a capital maintenance or restoration plan or the Borrower or any Subsidiary shall cease to be in compliance with any such Capital Commitments or plans existing on the date of this Agreement.
6.16. The Borrower shall default in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (Commercial Paper or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur breach any term of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesCommercial Paper Agreement.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the ParentUSI, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee, Fronting Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent USI or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 through 6.25, inclusive, or (ii) by any Credit Loan Party of any of the terms or provisions of any of Section 4.1.1 4.1.1(i) (to the extent that the non-compliance therewith by such Credit Loan Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 (to the extent that the non-compliance therewith by such Loan Party would independently give rise to a Default under clause (i) of this Section 7.3) or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Loan Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the ParentUSI, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the ParentUSI, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness (other than under a Receivables Purchase Facility) is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the ParentUSI, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower any Loan Party or any Material Foreign Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Loan Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Loan Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Loan Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Loan Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentUSI, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the ParentUSI’s or any Subsidiary’s insurance policies; provided that, so long as after giving effect to any payment in respect of any such judgment, (x) the Available Aggregate Commitment shall be $100,000,000 or more and (y) the Leverage Ratio (calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of such financial statements, such Distribution and any Indebtedness incurred in connection therewith, all in accordance with the terms of this Agreement) shall be less that 2.75 to 1.00, the rendering of any such judgment or order shall not constitute an Unmatured Default.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f303(k) of ERISA, which events in the aggregate would reasonably be expected to result in liability to USI or any other member of the Controlled Group in excess of $25,000,000.
7.10. Any Change in Control shall occur.
7.11. The Parent USI or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent USI or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent USI or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent USI and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith[Reserved].
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Loan Party that is a party thereto (except to the extent such Credit Loan Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Loan Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) which permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the ParentUSI, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 at such time and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes pursuant to which the replacement investors or substitution of the Parent, any Subsidiary purchasers shall replace USI or any SPV Wholly-Owned Subsidiary of USI with any other Person (other than USI or any Wholly-Owned Subsidiary of USI) as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the ParentUSI, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Guarantors to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed and, with respect to any matter which is reasonably capable of being cured, Borrower or such Guarantor, as applicable, shall have failed to cure the occurrence causing the representation or warranty to be materially false within thirty (30) days after notice thereof by Administrative Agent to Xxxxxxxx.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, or (ii) any Reimbursement Obligation Obligation, interest upon any Loan, any Unused Fee or LC Fee within one Business Day after the same becomes five (5) days of when due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligation under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation becomes written notice (which may include the invoice therefor) from Administrative Agent that the same is due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections covenants set forth in (a) Section 6.19 (other than as provided in Section 6.19(d)), (b) Section 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or (c) Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.36.7(c), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (i) any Senior Officer becoming aware of any such breach and (ii) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary Guarantor to pay when due any payment of principal or interest or any other material amount in respect of any Material Indebtedness within fifteen (15) days (or such greater applicable grace period as is provided in the applicable Material Indebtedness Agreement) of the date when due; or the default by the Borrower or any Guarantor in the performance (beyond the greater of thirty (30) days or the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary provided in the performance (beyond the applicable grace period with respect thereto, if anysuch Material Indebtedness) of any material term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, Agreement if the effect of which default, event or condition default is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, cause ten percent (10%) or more of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any ten percent (10%) or more of the Material Indebtedness of the Parent, the Borrower or any Subsidiary Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary Guarantor shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign SubsidiaryGuarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any Guarantor or any Substantial Portion of its their Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and the Guarantors which, when taken together with all other Property of the Borrower and the Guarantors so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary Guarantor shall fail within 60 thirty (30) days to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregateaggregate (net of amounts fully covered by insurance), or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Guarantor to enforce any such judgment.
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $5,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that, in full or otherwise fully covered (subject the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, would reasonably be expected to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesresult in a Material Adverse Effect.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.11 Any Change in Control shall occur.
7.11. 7.12 The Parent occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any other member of the Controlled Group shall have been notified by the sponsor terms or provisions of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all any Loan Document (other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notificationthan this Agreement), exceeds $20,000,000which default or breach continues beyond any period of grace therein provided.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. 7.13 Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by any Guarantor to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession any Guarantor shall deny that it has any further liability under any Guaranty to which it is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Letter of Credit, any Guaranty or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan or Note or L/C Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower or any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1, 6.2, 6.3(a), 6.10, 6.11, 6.12, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. 7.4 The breach by the Borrower or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after receipt of written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness equal to or exceeding $25,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or is outstandinggoverned, or any other event (including the occurrence of any "Amortization Event" or event of like import in connection with the Receivables Purchase Facility, but excluding a redemption of Receivables and Related Security pursuant to a "clean-up call" event) shall occur or condition exist, (i) the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity maturity, or any commitment to lend (ii) if such default or event shall occur or such condition exist under any such agreement Receivables Purchase Documents, the effect of which is to be terminated prior (A) terminate, or permit the investors thereunder to its stated expiration date; terminate, the reinvestment of collections or proceeds of Receivables and Related Security under any Material Indebtedness Receivables Purchase Document (other than a termination resulting solely from the request of the Parent, the Borrower or any Subsidiary of its Subsidiaries) or (B) cause the replacement of, or permit the investors thereunder to replace, the Person then acting as servicer for the related Receivables Purchase Facility; or any Indebtedness of the Borrower or any of its Subsidiaries equal to or exceeding $25,000,000 in the aggregate shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal United States bankruptcy laws as now or hereafter in effecteffect or cause or allow any similar event to occur under any bankruptcy or similar law or laws for the relief of debtors as now or hereafter in effect in any other jurisdiction, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator liquidator, monitor or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal United States bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its property or its debts under any law relating to bankruptcy, insolvency or reorganization or compromise of debt or relief of debtorsdebtors as now or hereafter in effect in any jurisdiction, or any organization, arrangement or compromise of debt under the laws of its jurisdiction of incorporation or fail to promptly file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith faith, or consent to or acquiesce in, any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed (either privately or by a court) for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect25,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $10,000,000 or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any PlanReportable Event, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient the occurrence which may reasonably be expected to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect, shall occur in connection with any Plan.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00010,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.10,000,000. 45
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary such Subsidiary, or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation of any environmental, health or safety law or regulation of any Governmental Authority, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. 7.14 Any Loan Document Guaranty shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken to discontinue or to assert the extent such Credit Party has been released from invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to perform its obligations thereunder in accordance under or otherwise comply with this Agreement any of the terms or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) provisions of any Guaranty to which it is a party, or any Credit Party Guarantor shall assert deny that its obligations thereunder are discontinued, invalid or unenforceable for it has any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at further liability under any time not constitute Guaranty to which it is a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationparty, or possession is required herein or therein) shall give notice to such effect.
7.15 Any Change in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) Control shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Defaults. The 11.1 Upon non-payment of the principal or interest due under the terms of this Agreement or on any of the Notes or other instrument or evidence of indebtedness outstanding under this Agreement when due in accordance with the terms thereof and continuance thereof for ten (10) days, the Notes shall automatically become immediately due and payable and Bank's obligation to make further advances hereunder shall automatically terminate.
11.2 Upon occurrence of any one or more of the following events shall constitute a Defaultof default:
7.1. Any representation (a) default in the observance or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower performance of any of the terms conditions, covenants or provisions agreements of any of Company set forth in Sections 6.2 or 6.3 or any of Sections 6.10 6.3, 8.1, 8.4, 8.5, 8.10 through 6.168.13, inclusive8.14, Sections 6.18 through 6.22, inclusive, 8.15 or Section 6.24 9 hereof;
(b) default in the observance or (ii) by any Credit Party performance of any of the terms other conditions, covenants or provisions agreements of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence Company herein set forth and continuance thereof with respect to any breach of Section 6.1 and (ii) for thirty (30) days after written notice from to Company by Bank;
(c) any representation or warranty made by Company herein or in any instrument submitted pursuant hereto proves to have been untrue in any material respect when made;
(d) default in the Agent observance or performance of any of the conditions, covenants or agreements of Company or any Lender Guarantor set forth in any collateral document of security which may be given to secure the Borrower indebtedness hereunder or in any other collateral document related to or connected with this Agreement or the indebtedness hereunder, and continuation of such default beyond any period of grace specified in any such document;
(e) default in the payment of any other such breach.
7.5. Failure obligation of the Parent, the Borrower Company or any Subsidiary to pay when due Guarantor for borrowed money in an amount in excess of One Hundred Thousand Dollars ($100,000), or in the observance or performance of any Material Indebtedness (beyond the applicable grace period conditions, covenants or agreements related or given with respect theretothereto and, if any); or the default by the Parentin each such case, the Borrower or continuance beyond any Subsidiary in the performance applicable cure period;
(beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (if) judgments or orders for the payment of money in excess of the sum of One Hundred Thousand Dollars ($10,000,000 (or the equivalent thereof in currencies other than Dollars100,000) in the aggregateaggregate shall be rendered against Company or any Guarantor, and such judgments shall remain unpaid, unvacated, unbonded or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on unstayed by appeal or otherwise being appropriately contested in good faith or for a period of sixty (b60) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of consecutive days from the date of such notification)its entry;
(g) the occurrence of any "reportable event", exceeds $20,000,000.
7.12. The Parent or as defined in the Employee Retirement Income Security Act of 1974 and any other member of the Controlled Group shall have been notified amendments thereto, which is determined to constitute grounds for termination by the sponsor Pension Benefit Guaranty Corporation of any employee pension benefit plan maintained by or on behalf of Company for the benefit of any of its employees or for the appointment by the appropriate United States District Court of a Multiemployer Plan that trustee to administer such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent plan and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.such
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Event of Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the any Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3, 6.4, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. The breach by the Borrower (other than a breach which constitutes a Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower an Authorized Officer becoming aware of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of Borrower and its Subsidiaries (taken as a whole) which, when taken together with all other Property of Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change An ERISA Event shall have occurred that, in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000result in a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary Loan Party to the Lenders or the Administrative Agent under or in connection with this Agreement, Agreement or any Credit Extension, or that is contained in any certificate or information financial statement delivered in connection with this Agreement or any other Loan Document Document, shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, due or (ii) any Reimbursement Obligation within one Business Day after the same becomes dueObligation, or (iii) interest upon any Revolving Loan Loan, any commitment fee or any Commitment Fee, LC Fee or any other Obligations obligation under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3(a), 6.4 (with respect to the Borrower only), 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive, 6.19 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20.
7.4. The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower from the Administrative Agent of any other such breach.
7.5. (i) Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay make any payment of principal or interest when due in respect of any Material Indebtedness (beyond the any applicable grace period with respect theretoor cure period, if any); or (ii) the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any instrument or agreement under which such Material Indebtedness is outstandingwas created, or any other event shall occur or condition exist, the effect of which default, event or condition under this clause (ii) is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such instrument or agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or (iii) any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any portion of Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; thereof (provided that, notwithstanding the foregoing, none of the following events shall constitute an Event of Default under the foregoing clause (ii) or clause (iii) of this Section 7.5 unless such event results in the Parent, acceleration of other Material Indebtedness of the Borrower or any Subsidiary shall not paySubsidiary: (A) any secured Indebtedness becoming due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, (B) any change of control offer made within 60 days after an acquisition with respect to, and effectuated pursuant to, Indebtedness of an acquired business, (C) any default under Indebtedness of an acquired business if such default is cured, or admit such Indebtedness is repaid, within 60 days after the acquisition of such business so long as no other creditor accelerates or commences any kind of enforcement action in writing its inability respect of such Indebtedness or (D) mandatory prepayment requirements arising from the receipt of net cash proceeds from debt, dispositions (including casualty losses, governmental takings and other involuntary dispositions), equity issues or excess cash flow, in each case pursuant to pay, its debts generally as they become dueIndebtedness of an acquired business).
7.6. Any Credit Party (i) The Borrower or any of its Material Foreign Subsidiary Subsidiaries shall (iA) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iiB) make a general assignment for the benefit of creditors, (iiiC) not pay, or admit in writing its inability to pay, its debts generally as they become due, (D) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivE) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vF) take any corporate corporate, limited liability company or partnership action to authorize in furtherance of, or effect indicating its consent to, approval of, or acquiescence in, any of the foregoing actions set forth in this Section 7.6 or (viG) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.7 or (ii) any insurance commissioner or any other insurance regulatory official having jurisdiction issues a corrective order that could reasonably be expected to have a Material Adverse Effect, or initiates any regulatory proceeding to oversee or direct the management of the entire business of the Borrower or any Subsidiary and such order or proceeding shall continue undismissed for 30 days.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any of its Material Foreign SubsidiarySubsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such any of its Material Foreign Subsidiary Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any of its Material Foreign Subsidiary Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Material Subsidiaries shall fail within 60 sixty (60) days from the entry thereof to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for involving in the payment of money aggregate a liability (not paid or covered by insurance as to which the relevant insurance company has not denied coverage) in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect), which judgment(s) or order(s), in any such case, is/are not (a) vacated, discharged, bonded or stayed on pending appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is An ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to terminate any Plan, other than have a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect.
7.10. Any Change in Control shall occur.
7.11. The Parent or There occurs under any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant Rate Management Transaction to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall is party an Early Termination Date (ias defined in the documentation related to such Rate Management Transaction) be the subject resulting from (a) any event of any proceeding or investigation pertaining default thereunder as to the release by the Parent, which the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into is the environment, Defaulting Party (as so defined) or (iib) violate any Environmental Law, which, in the case of an event described in clause Termination Event (ias so defined) or clause (ii), has resulted in liability as to the Parent, which the Borrower or any Subsidiary is an Affected Party (as so defined), and, in an amount equal to $20,000,000 or moreeither event, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto the Swap Termination Value (except to as defined below) owed by the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement Borrower or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason Subsidiary as a result thereof is greater than $50,000,000 (other than those enumerated in the first parenthetical aboveaggregate for all such Rate Management Transactions); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing. As used in this Section 7.10, registration“Swap Termination Value” means, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities a Rate Management Transaction, upon the designation of an Early Termination Date (as defined in the documentation related to such Rate Management Transaction), the amount of the Parentpayment upon early termination determined in accordance therewith, any Subsidiary or any SPV to require after taking into account the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment effect of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal legally enforceable netting agreement relating to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesRate Management Transaction.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee non-use fee or other Obligations obligations under any of the Loan Documents within five three (53) Business Days after such interest, fee or other Obligation becomes of when due.
7.3. The breach by Borrower (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.20, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or of provisions of Section 6.1, ------------ ----------- Section 6.2, Section 6.4 or Sections 6.10 through 6.26 (excluding Section ----------- ----------- ------------- ---- ------- 6.20) which is not remedied within fifteen (15) Business Days after the ---- earlier of (a) the receipt by Borrower of notice thereof from Agent or any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) Lender or (iib) of Section 4.1.4 of the Security Agreementhaving obtained knowledge thereof.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or ----------- provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written the earlier of (a) the receipt by Borrower of notice thereof from the Agent or any Lender to the Borrower of any other such breachor (b) having obtained knowledge thereof.
7.5. Failure of the Parent, the The default by Borrower or any Subsidiary of its Subsidiaries for failure to pay make any payment when due any Material Indebtedness (beyond the all applicable grace period or cure periods with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in respect of any Indebtedness aggregating in excess of $10,000,000 ("Material Indebtedness"); or the default by the Parent, the Borrower --------------------- or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not payof its Subsidiaries becomes unable, or admit admits in writing its inability or fails generally to pay, pay its debts generally as they become due.
7.6. Any Credit Party Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws any Debtor Relief Laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute (or consent to the institution of) any proceeding seeking an order for relief under the Federal bankruptcy laws any Debtor Relief Laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith any appointment ----------- or proceeding described in Section 7.7.. -----------
7.7. Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(a) shall be instituted against any Credit Party Borrower or any Material Foreign Subsidiary of its Subsidiaries -------------- and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of Borrower or any Subsidiary of its Subsidiaries which, when taken together with all other Property of Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. Borrower or any of its Subsidiaries shall fail within 60 45 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess an aggregate amount of $10,000,000 (or the equivalent thereof more in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effectexcess of insurance proceeds, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject and as to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAwhich no enforcement actions have been commenced.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Article VI , Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.25 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.26.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) ten days after written notice from the Agent or any Lender Lender; provided, that if such breach can be cured and Borrower begins and is diligently pursuing a cure thereof prior to the expiration of the ten day cure period above provided, then Borrower shall not be in default hereunder if Borrower cures such failure within thirty days after the above provided written notice of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor to pay when due any Material Indebtedness aggregating in excess of $250,000 (beyond the applicable grace period with respect thereto, if any"MATERIAL INDEBTEDNESS"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor in the performance (beyond performance(beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Guarantor or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries or any Subsidiary Guarantor which, when taken together with all other Property of the Borrower and its Subsidiaries or any Guarantor so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Borrower, Parent or any of their Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 25,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $100,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000500,000 or requires payments exceeding $ 250,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000100,000.
7.13. The ParentBorrower, the Borrower Parent or any Subsidiary of their Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default", as defined in any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in this Agreement) or the first parenthetical above); the Liens created by the Collateral Documents shall at breach of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount Loan Document (other than this Agreement), which default or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur breach continues beyond any period of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Administrative Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one five Business Day Days after written notice from the Administrative Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Administrative Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. 7.4 The breach by the any Borrower (or Guarantor of, or other than a breach which constitutes a Default under another Section of this Article VII) default by any Borrower or any other Credit Party of Guarantor under, any of the terms or provisions of this Agreement or any other Loan Document to (other than a breach or default which it is constitutes a party Default under Section 7.1, 7.2 or 7.3) which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $25,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) voluntarily have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any Subsidiary shall fail within 60 days portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve‑month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to pay, bond or otherwise discharge one have a Material Adverse Effect.
7.9 One or more (i) judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollarsjudgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) in shall be rendered against the aggregateCompany, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or (ii) nonmonetary judgments any action shall be legally taken by a judgment creditor to attach or orders which, individually levy upon any assets of the Borrower or in the aggregate, would reasonably be expected any Subsidiary to have a Material Adverse Effect, which judgment(s), in enforce any such case, is/are judgment which is not (a) effectively stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.for a period of 30 consecutive days;
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall have been notified become liable to pay under Title IV of ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess of $25,000,000 (a "Material Plan") shall be filed under Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in excess of $25,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that could reasonably be expected to result in PBGC obtaining a decree adjudicating that any Material Plan must be terminated; or the determination by the sponsor PBGC of a Multiemployer Plan that it has incurred, pursuant to Section 4201 liability in excess of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or $25,000,000 on any other member of the Controlled Group as withdrawal liability (determined as pursuant to Section 4062(e) or 4069 of ERISA or by reason of the date application of such notification)Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years excess of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. 7.11 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environmentHazardous Substance, or (ii) violate any violation of any applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.12 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur Change of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesControl.
Appears in 1 contract
Samples: Credit Agreement (Diebold Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extensionother Transaction Document, any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Transaction Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) or nonpayment of interest upon any Reimbursement Obligation Note or of any commitment fee or other Obligations within one Business Day ten days after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 6.2, 6.3, 6.4, 6.11, 6.13 through 6.166.18, inclusive, Sections 6.18 through and 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness in excess of, singularly or in the aggregate, $5,000,000 (beyond the applicable grace period with respect thereto, if any"Significant Indebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Significant Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Significant Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Significant Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect5,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed, in Control the aggregate, $50,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of its Subsidiaries of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Lawviolation by the Borrower or any of its Subsidiaries of any federal, state or local environmental, health or safety law or regulation, which, in either case, if adversely determined, could (after taking into account indemnification, insurance and other reimbursement obligations of other responsible parties) reasonably be expected to have a Material Adverse Effect.
7.12. The occurrence of any "default", as defined in any Transaction Document (other than this Agreement or the case of an event described in clause (i) or clause (iiNotes), has resulted or the breach of any of the terms or provisions of any Transaction Document (other than this Agreement or the Notes), which default or breach continues beyond any period of grace therein provided.
7.13. Any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in liability any collateral purported to be covered thereby, except as permitted by the Parentterms of any Collateral Document, the Borrower or any Collateral Document or the Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document Guaranty shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken to discontinue or to assert the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement invalidity or such other Loan unenforceability of any Collateral Document or such Loan Document has expired the Subsidiary Guaranty, or terminated in accordance with its terms) the Borrower or any Credit Party Subsidiary shall assert that its obligations thereunder are discontinued, invalid or unenforceable for fail to comply with any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having terms or provisions of any Collateral Document or the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)Subsidiary Guaranty.
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits Any Authorization necessary for the investors or purchasers in respect ownership of Off-Balance Sheet Liabilities any paging business of the Parent, any Subsidiary Borrower or any SPV of its Subsidiaries or essential for the Borrower's or any of its Subsidiaries' provision of Paging Services shall expire, and on or prior to require such expiration, the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event same shall not be remedied have been renewed or waived within replaced by another Authorization authorizing substantially the later to occur of same operations by the tenth day after the occurrence thereof Borrower or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, Subsidiary; or (ii) causes any Authorization necessary for the replacement or substitution ownership of any paging business of the Parent, any Subsidiary Borrower or any SPV as of its Subsidiaries or essential for the servicer under Borrower's or any of its Subsidiaries' provision of Paging Services shall be cancelled, revoked, terminated, rescinded, annulled, suspended or modified in a materially adverse respect, or shall no longer be in full force and effect, or the agreements evidencing grant or the effectiveness thereof shall have been stayed, vacated, reversed or set aside, and such Off-Balance Sheet Liabilities; action shall be no longer subject to further administrative or judicial review (provided, however, that neither of the foregoing events described in clause (i) or (ii) of this Section 7.15 7.14 shall constitute a Default if such loss of any such Authorization could not apply on any date with respect reasonably be expected to (a) any voluntary request by have a Material Adverse Effect or to materially adversely affect the Parent, any Subsidiary value of the Collateral).
7.15. Any Change in Control shall occur; or any SPV for an above-described amortization 'Change of Control' under and as defined in any indenture or liquidation so long as the aforementioned investors instrument evidencing or purchasers cannot independently require on such date such amortization or liquidation or (b) creating any scheduled amortization or liquidation at the stated maturity Subordinated Indebtedness of the facility evidencing such Off-Balance Sheet LiabilitiesBorrower shall occur.
Appears in 1 contract
Samples: Credit Agreement (Pronet Inc /De/)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders Banks or the Administrative Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee facility fee or other Obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.36.3(a), 4.1.3 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.46.17. The breach by the Borrower (other than a breach which constitutes a Default under another Section 7.1, 7.2 or the preceding sentence of this Article VIISection 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachBank.
7.5. 7.4 Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond in an aggregate principal amount in excess of $50,000,000 within 30 days after the applicable grace period with respect theretoBorrower knows or ought reasonably to have known, if any)that such Indebtedness was due; or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any to cause such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Material Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.5 The Borrower or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws any Debtor Relief Law as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial part of its Propertyproperty, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws any Debtor Relief Law as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating Debtor Relief Law or fail to bankruptcy, insolvency file an answer or reorganization or relief other pleading denying the material allegations of debtorsany such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 7.5, or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.6.
7.7. 7.6 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign any Subsidiary or any Substantial Portion substantial part of its Propertyproperty, or a proceeding described in Section 7.6(iv7.5(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.7 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of all or any Substantial Portion of the property of the Borrower or any Material Subsidiary.
7.8 The Parent, the Borrower or any Subsidiary shall fail within 60 30 days to pay, bond or otherwise discharge discharge, one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) 20,000,000 in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith. Any Liens arising out of such judgments or (b) paid in full or otherwise fully covered (orders are subject to the provisions of Section 6.15(h).
7.9 Any Reportable Event shall occur in connection with any applicable deductible) by third-party insurers under the Parent’s Plan or any Subsidiary’s insurance policiesmaterial Unfunded Liabilities shall exist.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.10 Any Change in Control shall occur.
7.11. The Parent or “Change in Control” means either (a) with respect to any other member capital stock of the Controlled Group shall have been notified by Borrower that is publicly traded, the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of acquisition after the date of such notification)this Agreement by any Person or two or more Persons acting in concert, exceeds $20,000,000.
7.12. The Parent or any other member than the Knight Family, of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, beneficial ownership (within the meaning of Title IV Rule 13d-3 of ERISAthe Securities and Exchange Commission under the Securities Exchange Act of 1934) of 50% or more of the outstanding shares of such capital stock which are entitled to vote in the election of directors; or (b) with respect to any capital stock of the Borrower that is not publicly traded, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents Knight Family shall at any time not constitute a valid fail to own and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, control 67% or possession is required herein or therein) in favor more of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation outstanding shares of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiescapital stock.
Appears in 1 contract
Samples: Credit Agreement (Nike Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, nonpayment of any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feefacility fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.3 The breach by the Company of Sections 6.3, 6.9, 6.10, 6.13, 6.15, or 6.16.
7.4 The breach by any Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Significant Subsidiaries to pay when due any Material Indebtedness (principal, interest or other amounts, subject to any applicable grace period, or the default by the Company or any of its Significant Subsidiaries in the performance beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Indebtedness in excess of 2% of Adjusted Tangible Net Worth was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Significant Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Significant Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws (or any similar laws in foreign jurisdictions) as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its PropertyPortion, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Company or any Material Foreign Subsidiaryof its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Significant Subsidiaries or any Substantial Portion of its PropertyPortion, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Significant Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Company or any of its Significant Subsidiaries shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in (not covered by insurance)in excess of $10,000,000 2% of Adjusted Tangible Net Worth (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any either such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith.
7.10 Any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of 2% of Adjusted Tangible Net Worth which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess of $50,000,000 (ba “Material Plan”) paid in full or otherwise fully covered (subject to shall be filed under Section 4041(c) of ERISA by any applicable deductible) by third-party insurers under member of the Parent’s Controlled Group, any plan administrator or any Subsidiary’s insurance policies.
7.9. Any formal step combination of the foregoing; or PBGC shall institute proceedings under which it is taken likely to terminate any Planprevail under Title IV of ERISA to terminate, to impose liability (other than a standard termination for premiums under Section 4041(b4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, or a contribution failure has occurred with respect to, one or more Multiemployer Plans which causes one or more members of the Controlled Group to any Plan sufficient to give rise to incur a Lien under Section 302(f) current payment obligation in excess of ERISA2% of Adjusted Tangible Net Worth.
7.10. 7.11 Any Change in Control shall occur.
7.11. 7.12 The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in unenforceability of the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession is required herein or therein) in favor the Company shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities provisions of the ParentGuaranty, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of Company shall deny that it has any grace period related thereto further liability under the agreement evidencing such Off-Balance Sheet LiabilitiesGuaranty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this AgreementAgreement or any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent Company or the Borrower any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Article VI Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20, 6.21, 6.22 (Financial Covenants), 6.24, 6.25 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any 6.26, PROVIDED that a breach of Section 4.1.1 (to the extent that the 6.15 occurring as a result of a non-compliance therewith by such Credit Party would independently give rise to consensual Lien securing an obligation not in excess of $1,000,000 shall not constitute a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreementunless such breach shall not have been remedied within 30 days after such Lien arose.
7.4. 7.4 The breach by the Borrower Company or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) twenty days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness aggregating in excess of $1,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Company or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Company or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to faith.
7.10 Any Unfunded Liabilities shall exist under any applicable deductible) by third-party insurers under the Parent’s Single Employer Plan or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate Reportable Event shall occur in connection with any Plan, other than in either case, which could reasonably be expected to have a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Company or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000could reasonably be expected to have a Material Adverse Effect.
7.12. 7.12 The Parent Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Company and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000which could reasonably be expected to have a Material Adverse Effect.
7.13. 7.13 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentCompany, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in liability to Control shall occur.
7.15 Nonpayment by the Parent, the Borrower Company or any Subsidiary of any Rate Management Obligation when due or the breach by the Company or any Subsidiary of any term, provision or condition contained in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithany Rate Management Transaction.
7.14. 7.16 Any Loan Collateral Document shall for any reason, other than an act or omission of the Agent or any Holder of Secured Obligations, fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute create a valid and perfected Lien on security interest in the Collateral intended purported to be covered thereby (thereby, subject only to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated Liens permitted by the Collateral Documents (except to the extent Credit Agreement, and such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event failure shall not be remedied within ten days; or waived within any Borrower shall take any action to discontinue or to assert the later invalidity or unenforceability of any Collateral Document, whether as to occur such Borrower or in its entirety.
7.17 The Company shall fail to comply in a timely manner with the terms of any preferred stock issued by the Company pursuant to which any holder thereof shall have elected to convert such preferred stock to common stock of the tenth day after Company, and as a consequence thereof any such holder shall have given notice to the occurrence thereof or Company demanding the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation redemption of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiespreferred stock.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.18.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders Lenders, the Swing Line Lender, the LC Issuer or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement Agreement, any Credit Extension or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.28.2. Nonpayment of (i) principal of any Revolving Loan or Reimbursement Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feefacility fee, LC Fee letter of credit fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.38.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 7.2 (only as to the last sentence thereof), inclusive7.3, Sections 6.18 through 6.227.10, inclusive7.11, 7.12, 7.13, ----------- --- ---- ---- ---- ---- 7.14, 7.16, 7.17, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.7.20. ---- ---- ---- ----
7.48.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIIVIII) or any other Credit Party of any of the terms or ------------ provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) fifteen days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.58.5. Failure of the Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries to pay when due any Material Indebtedness aggregating in excess of $10,000,000 (beyond the applicable grace period with respect thereto, if any"MATERIAL INDEBTEDNESS"); or the default by the Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.68.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Consolidated Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws or other applicable bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws or other applicable bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 8.6 or (vi) fail to contest on a timely basis in good faith any ----------- appointment or proceeding described in Section 7.7.8.7. ------------
7.78.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Consolidated Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Consolidated Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv8.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of --------------- its Consolidated Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.88.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Consolidated Subsidiaries which, when taken together with all other Property of the Borrower and its Consolidated Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
8.9. The Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect5,000,000, which judgment(s), in any such case, is/are is not stayed on appeal.
8.10. The sum of (a) stayed on appeal or otherwise being appropriately contested in good faith or the Unfunded Liabilities of all Single Employer Plans and (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred unfunded liabilities with respect to all Foreign Pension Plans shall exceed $30,000,000 in the aggregate or any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAReportable Event shall occur in connection with any Plan.
7.10. Any Change in Control shall occur.
7.118.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $1,000,000 per annum.
7.128.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.138.13. The Parent, the Borrower or any Subsidiary of its Consolidated Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Consolidated Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or ---------- clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect. -----------
8.14. Any Change in liability Control shall occur.
8.15. The occurrence of any "default", as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
8.16. The Subsidiary Guaranty shall fail to remain in full force or effect with respect to each Subsidiary Guarantor or any action shall be taken to discontinue or to assert the Parentinvalidity or unenforceability of the Subsidiary Guaranty, the Borrower or any Subsidiary in an amount equal Guarantor shall fail to $20,000,000 comply with any of the terms or moreprovisions of the Subsidiary Guaranty, which or any Subsidiary Guarantor shall deny that it has any further liability is not paidunder the Subsidiary Guaranty, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithshall give notice to such effect.
7.148.17. Any Loan of the following shall occur: (i) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document, (ii) any Collateral Document shall fail to remain in full force or effect against effect, (iii) any Credit Party party thereto action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or (except to iv) the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) Borrower or any Credit Party of its Subsidiaries shall assert that its obligations thereunder are discontinuedfail to comply with any of the terms or provisions of any Collateral Document, invalid or unenforceable for any reason (other than those enumerated and, in the first parenthetical abovecase of clauses (i); , (ii) and (iv), such occurrence shall continue for a period of 60 days after the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor earlier of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence Borrower's knowledge thereof or the expiry date of any grace period related thereto under Borrower received notice thereof from the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary Agent or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesLender.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, Extension or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be being false or misleading in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment commitment fee, LC Fronting Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.3, Sections 6.18 through 6.7, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28, 6.29, 6.30, 6.31 and 6.32.
7.4. 7.4 The breach by the Borrower (other than a breach which that constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which breach is not remedied within (i) five (5) Business Days 30 days after the occurrence thereof with respect to any breach earlier of Section 6.1 and (iia) thirty (30) days after written notice from the Agent or any Lender to the Borrower becomes aware thereof or (b) the Borrower receives notice of any other the same from Administrative Agent; provided, however, that if such breach cannot reasonably be cured within such 30-day period, as determined by the Administrative Agent, in its reasonable discretion, and the Borrower is diligently pursuing a remedy of such breach, the Borrower shall have a reasonable period to remedy such breach beyond such 30-day period, which shall not exceed 90 days.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect theretoIndebtedness, if any); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition existcondition, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be of its Subsidiaries being declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not of its Subsidiaries failure to pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary shall of its Subsidiaries (i) have has an order for relief entered with respect to it under the Federal federal bankruptcy laws as now or hereafter in effect, (ii) make a general makes an assignment for the benefit of creditors, (iii) apply applies for, seekseeks, consent to, consents to or acquiesce in, acquiesces in the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute institutes any proceeding seeking an order for relief under the Federal federal bankruptcy laws as now or hereafter in effect or effect, seeking to adjudicate it a bankrupt or insolvent, insolvent or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take takes any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail fails to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be is appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be is instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency condemns, seizes or otherwise appropriates or takes custody or control of all or any portion of the Property of the Borrower and its Subsidiaries that, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary shall fail of its Subsidiaries fails within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders whichthat, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is taken to terminate any Plan7.10 An ERISA Event occurs that, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member the opinion of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount whichRequired Lenders, when aggregated taken together with all other amounts required ERISA Events that have occurred, could reasonably be expected to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000result in a Material Adverse Effect.
7.12. The Parent or any other member of the Controlled Group shall have been notified 7.11 Nonpayment by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding material Rate Management Obligation when due or investigation pertaining to the release breach by the Parent, the Borrower or any Subsidiary of any term, provision or condition in any material Rate Management Transaction or any other Person transaction of the type described in the definition of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto.
7.12 Any Change in Control.
7.13 The occurrence of any toxic or hazardous waste or substance into the environment, or “default,” as defined in any Loan Document (ii) violate any Environmental Law, which, in the case of an event described in clause (iother than this Agreement) or clause the breach of any of the terms or provisions of any Loan Document (iiother than this Agreement), has resulted in liability to the Parentwhich default or breach continues beyond any notice, the Borrower grace or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithcure period therein provided.
7.14. Any Loan Document shall fail 7.14 The Guaranty fails to remain in full force or effect against effect, any Credit Party party thereto (except action is taken to discontinue or to assert the extent such Credit Party has been released from its obligations thereunder in accordance invalidity or unenforceability of the Guaranty as to any Guarantor, any Guarantor fails to comply with this Agreement any of the terms or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) provisions of the Guaranty, or any Credit Party shall assert Guarantor denies that its obligations thereunder are discontinued, invalid it has any further liability under the Guaranty or unenforceable gives notice to such effect.
7.15 Any Collateral Document necessary to create or grant a security interest in the Collateral or to perfect a security interest in the Collateral (the “Material Collateral Documents”) for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute fails to create a valid and perfected Lien on first-priority security interest in any substantial portion of the Collateral intended or any material Collateral purported to be covered thereby (thereby, except as permitted by the terms of such Material Collateral Documents, fails to remain in full force or effect, any action is taken to discontinue or to assert the extent perfection by filing, registration, recordationinvalidity or unenforceability of any Material Collateral Document, or possession is required herein the Borrower or therein) any Domestic Subsidiary fails to comply in favor any material way with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount Material Collateral Document to which it is a party (subject to any applicable notice, grace or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; cure periods therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities).
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made (or deemed made pursuant to Section 4.2) by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee facility fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, 6.3, 6.10 or 6.3 6.19; or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of Section 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18 or 6.20 which is not remedied within 10 days after written notice from the Agent or any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementLender.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond other than the applicable grace period with respect thereto, if any)Obligations) in an aggregate principal amount exceeding $2,000,000 when due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Indebtedness (other than the Obligations) in an aggregate principal amount exceeding $2,000,000 was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than the Obligations) in an aggregate principal amount exceeding $2,000,000 shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Domestic Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial part of its Propertyproperty, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Domestic Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its PropertyDomestic Subsidiaries or any substantial part of its property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Domestic Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. The ParentAny Foreign Subsidiary shall have taken or instituted or permitted to be taken or instituted any action or proceeding, or any such action or proceeding is instituted against such Foreign Subsidiary, whereby a substantial amount of its property shall or may be assigned or in any manner transferred or delivered to any receiver, assignee, liquidator or other Person, whether appointed by such Foreign Subsidiary or by a court or by any governmental authority or any law, whereby such property shall or may be distributed among the creditors of such Foreign Subsidiary, provided the aggregate claims of all such creditors against such Foreign Subsidiary or against all such Foreign Subsidiaries shall exceed $1,000,000 and such action or proceeding remains undismissed or unstayed on appeal for a period of 90 days; or any governmental authority having jurisdiction shall have taken or instituted any action or proceeding for the dissolution or disestablishment of any Foreign Subsidiary or for the suspension of its operations, provided the assets of any such Foreign Subsidiary or the aggregate assets of all such Foreign Subsidiaries shall exceed $500,000 and such action or proceeding remains undismissed or unstayed on appeal for a period of 90 days; or all of the property of any Foreign Subsidiary shall have been condemned, seized or appropriated, provided the net assets of any such Foreign Subsidiary or the aggregate net assets of all such Foreign Subsidiaries shall exceed $1,000,000; or the total of all claims against any Foreign Subsidiary or all Foreign Subsidiaries resulting from any action or proceeding described in this Section 7.8 and the amount of assets or net assets, as the case may be, of any Foreign Subsidiary or all Foreign Subsidiaries which are subject to any action, proceeding, condemnation, seizure or appropriation described in this Section 7.8 shall exceed $1,000,000.
7.9. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of all or any substantial portion of the property of the Borrower or any Subsidiary of its Subsidiaries.
7.10. The Borrower or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect1,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occurfaith.
7.11. The Parent Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $10,000,000; or any Reportable Event shall occur in connection with any Plan; or the Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all Unfunded Liabilities of all Single Employer Plans and all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification)liability, exceeds $20,000,00010,000,000.
7.12. The Parent Any court, government or governmental agency shall find or hold, or formally notify the Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan Subsidiary, that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of has violated any proceeding federal, state or investigation pertaining to local environmental, health or safety law or regulation, or (ii) bears responsibility for any removal or remedial or similar action in connection with the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or is otherwise liable in any manner in connection with any such release; and such finding, holding or notification could reasonably be expected (ii) violate taking into account the expected outcome of any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability legal appeals available to the Parent, the Borrower or such Subsidiary, as well as the likelihood and extent of contribution from any Subsidiary in an amount equal other Persons who may be jointly and severally liable with the Borrower or such Subsidiary) to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.147.13. Any Loan Document Change in Control shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feefacility fee, usage fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Article VI Section 6.2, 6.3, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21 or 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within twenty (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3020) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Indebtedness with a principal amount in excess of $10,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any material term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other material event shall occur or material condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Active Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Active Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Active Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Active Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $5,000,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.11 Any Change in Control shall occur.
7.11. 7.12 The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in unenforceability of the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationSubsidiary Guaranty, or possession is required herein or therein) in favor any Guarantor shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities provisions of the Parent, any Subsidiary Guaranty or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event Guarantor shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto deny that it has further liability under the agreement evidencing such Off-Balance Sheet LiabilitiesSubsidiary Guaranty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any If one or more Events of Default shall occur, that is to say, if
(a) default shall be made in the punctual payment of the following events shall constitute a Default:
7.1. Any representation principal of or warranty made or deemed made by or premium, if any, on behalf any of the ParentNotes or any installment thereof when due, whether by regular installment, upon prepayment, by acceleration, at maturity or otherwise; or
(b) default shall be made in the Borrower punctual payment of any interest on any of the Notes when due, and such default shall have continued for a period of five business days; or
(c) there shall occur any Event of Default under and as defined in that certain Note Purchase Agreement among the Company, -21- 25 Nxxxxxxxxxxx, Xxxxx Xxxxxxxx xxx CU Life Insurance Company of New York dated as of August 15, 1986, as amended; or
(d) the Company or any Subsidiary to defaults beyond any period of grace provided with respect thereto in any payment of principal of or interest on any other Debt the Lenders or the Agent under outstanding principal amount of which exceeds $500,000, or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower performance of any other such breach.
7.5. Failure of the Parentagreement, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision term or condition contained in any agreement under which Material Indebtedness any such Debt is outstandingcreated, or if an event of default (including, without limitation, a cross default) exists under and as defined in any other event shall occur or condition existagreement under which any such Debt is created, if the effect of which default, such default or event or condition of default is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness Debt (or the lender(sa trustee on behalf of such holder or holders) under any such agreement to cause, such Material Indebtedness Debt to become due prior to its stated maturity maturity, or if any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, above occur at any time with respect to any Debts the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased aggregate outstanding principal amount of which exceeds $500,000; or
(other than by a regularly scheduled payment or specified mandatory prepaymente) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief shall be entered with respect to it in any Federal Bankruptcy proceeding in which the Company or any Material Subsidiary is the debtor; or bankruptcy, receivership, insolvency, reorganization, relief, dissolution, liquidation or other similar proceedings shall be instituted by or against the Company or any Material Subsidiary or all or any part of the property of the Company or any Material Subsidiary under the Federal Bankruptcy Code or any other law of the United States or any bankruptcy laws or insolvency law of any state of competent jurisdiction unless, if such proceedings are instituted against the Company or any Material Subsidiary, such proceedings are dismissed and discharged within 60 days after they are instituted; or
(f) the Company or any Material Subsidiary shall cease doing business as now a going concern (except in connection with a termination of corporate existence of such Material Subsidiary permitted under paragraph 4(i) hereof or hereafter a merger or consolidation in effectwhich the Company or such Material Subsidiary is not the surviving corporation permitted under paragraph 5(f) hereof), (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent toadmit in writing its inability to pay its Debts as they become due, or acquiesce in, the appointment of if a receiver, custodian, trustee, examiner, receiver or liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary or for any substantial portion of the assets of the Company or any Material Subsidiary and such appointment continues undischarged shall not be vacated within 60 days; or
(g) default shall be made in the performance or observance of any covenant contained in paragraph 5 of this Agreement; or
(h) default shall be made in the performance or observance of any other of the terms, covenants or conditions of this Agreement and such proceeding continues undismissed or unstayed default shall continue for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 thirty days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent after written notice thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified given by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining you to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above)Company; the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.or
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events Events shall constitute a "Default":
7.1. (a) Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders Administrative Agent or the Agent any Lender or LC Issuer under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. (b) Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Fee, LC Fee fee or other Obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. (c) The breach by (i) the Parent or the Borrower of any of the terms or provisions of any (i) Sections 6.04(a), (b), (c), (d), (e), (f), (g), (h), (l) or (m), which breach is not remedied within five (5) Business Days after written notice of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 such breach has been given to the Borrower by the Administrative Agent or (ii) by any Credit Party of any of the terms Sections 6.02, 6.09, 6.10, 6.11, 6.12, 6.13, 7.01, 7.02, 7.03, 7.04, 7.06, 7.08, 7.09, 7.12, 7.13, 7.15, 7.16, 7.17, 7.18, 7.20 or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement7.21.
7.4. (d) The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISection 8.01) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written the first to occur of actual knowledge thereof by an Authorized Officer or notice from the Agent or any Lender to the Borrower of any other such breachfrom the Administrative Agent.
7.5. (e) Failure of the Parent, the Borrower or any Subsidiary of its Significant Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Significant Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Significant Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Significant Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party (f) The Borrower or any Material Foreign Subsidiary of its Significant Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 subsection (f) or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7subsection (g).
7.7. (g) Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(ivsubsection (f) above shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 thirty (30) consecutive days.
7.8. (h) Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Significant Subsidiaries which, when taken together with all other Property of the Borrower and its Significant Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
(i) The Parent, the Borrower or any Subsidiary of its Significant Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b(j) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. (k) The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted could reasonably be expected to have a Material Adverse Effect.
(l) The occurrence of any "default", as defined in liability any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
(m) Any Guaranty delivered pursuant hereto shall fail to the Parent, the Borrower remain in full force or effect or any Subsidiary in an amount equal action shall be taken to $20,000,000 discontinue or moreto assert the invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under any Guaranty to which it is not paida party, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithshall give notice to such effect.
7.14. (n) Any Loan Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinuedthe invalidity or unenforceability of any Collateral Document, invalid or unenforceable for the Borrower shall fail to comply with any reason of the terms or provisions of any Collateral Document.
(other than those enumerated o) The representations and warranties set forth in the first parenthetical above); the Liens created by the Collateral Documents Section 5.15 shall at any time not constitute a valid be true and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiescorrect.
Appears in 1 contract
Samples: Credit Agreement (NVR Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with 45 this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.11, 6.12, 6.14, 6.15, 6.16, inclusive6.19, Sections 6.18 through 6.226.20, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreementand 6.21 hereof.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2, or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material "recourse" Indebtedness (beyond i.e., Indebtedness which is recoverable from the applicable grace period with respect thereto, if any)general assets of the Borrower and/or its Subsidiaries) which is outstanding in an aggregate amount of at least $5,000,000; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material such "recourse" Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of cause such Material Indebtedness or the lender(s) under any such agreement to cause, such Material "recourse" Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material "recourse" Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than "recourse" Indebtedness which is "due on demand") shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries that has more than $10,000,000 of Total Tangible Assets shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a A receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign any Subsidiary that has more than $10,000,000 of Total Tangible Assets 46 or any Substantial Portion of its their Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign such Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion of their Property.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect5,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $100,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000100,000 or requires payments exceeding $1,000,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000100,000.
7.13. The Parent, Failure to remediate within the Borrower time period permitted by law or any Subsidiary shall governmental order (ior within a reasonable time give the nature of the problem if no specific time period has been given) be the subject material environmental problems related to Properties whose aggregate book values are in excess of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability where the estimated cost of remediation is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid aggregate in excess of $100,000, in each case after all administrative hearings and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens appeals have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesconcluded.
Appears in 1 contract
Samples: Credit Agreement (Washington Real Estate Investment Trust)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the ParentUSI, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee, Fronting Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent USI or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 through 6.25, inclusive, or (ii) by any Credit Loan Party of any of the terms or provisions of any of Section 4.1.1 4.1.1(i) (to the extent that the non-compliance therewith by such Credit Loan Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 (to the extent that the non-compliance therewith by such Loan Party would independently give rise to a Default under clause (i) of this Section 7.3) or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Loan Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the ParentUSI, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the ParentUSI, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness (other than under a Receivables Purchase Facility) is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the ParentUSI, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower any Loan Party or any Material Foreign Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Loan Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Loan Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Loan Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Loan Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentUSI, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 50,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the ParentUSI’s or any Subsidiary’s insurance policies; provided that, so long as after giving effect to any payment in respect of any such judgment, (x) the Available Aggregate Commitment shall be $100,000,000 or more and (y) the Leverage Ratio, calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 (or, prior to the delivery of the first such financial statements, as of March 31, 2013) and after giving effect to any Permitted Acquisition (including any incurrence of Indebtedness in connection therewith) and Material Disposition (including any reduction of Indebtedness in connection therewith) since the date of such financial statements, as if any such Permitted Acquisition and Material Disposition (and any incurrence or reduction of Indebtedness in connection with any of the foregoing) had occurred as of the first day of the four quarter period set forth in such financial statements, shall be less that 2.75 to 1.00, the rendering of any such judgment or order shall not constitute an Unmatured Default.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f303(k) of ERISA, which events in the aggregate would reasonably be expected to result in liability to USI or any other member of the Controlled Group in excess of $25,000,000.
7.10. Any Change in Control shall occur.
7.11. The Parent USI or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent USI or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent USI or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent USI and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith[Reserved].
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Loan Party that is a party thereto (except to the extent such Credit Loan Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Loan Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) which permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the ParentUSI, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 at such time and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes pursuant to which the replacement investors or substitution of the Parent, any Subsidiary purchasers shall replace USI or any SPV Wholly-Owned Subsidiary of USI with any other Person (other than USI or any Wholly-Owned Subsidiary of USI) as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the ParentUSI, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (United Stationers Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 (a) Nonpayment of (i) principal of any Revolving Loan when due, (iib) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iiic) nonpayment of interest upon any Revolving Loan or any Commitment Feestated fees set forth herein or in the Fee Letters, LC Fee or other Obligations under any of the Loan Documents in each case, within five (5) Business Days after such interest, fee the same become due and (d) nonpayment of other obligations under this Agreement or other Obligation becomes any of the Loan Documents within thirty (30) days after the same become due.
7.3. (a) The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or Section 6.2, 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (iib) the breach by any Credit Party the Borrower of any of the terms or provisions of Section 6.1.1, 6.1.2, 6.1.3, or 6.1.8 which is not remedied within five (5) Business Days after written notice thereof is given by the Agent or a Lender to the Borrower or (c) the breach by the Borrower of any of the terms or provisions of Section 4.1.1 (to 6.9, 6.10, 6.11, 6.12, 6.13, 6.14 or 6.15 after the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause earlier of (i) of this Section 7.3), 4.1.3 five (5) Business Days after written notice thereof is given by the Agent or clauses (i) or a Lender to the Borrower and (ii) the date an Authorized Officer becomes aware of Section 4.1.4 of the Security Agreementsuch Default.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from thereof is given by the Agent or any a Lender to the Borrower of any other such breachBorrower.
7.5. (a) Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration dateIndebtedness; or any Material Indebtedness of the Parent, (b) the Borrower or any Subsidiary shall be default (after giving effect to any applicable grace period) in the observance or performance of any covenant or agreement relating to such Material Indebtedness and, as a result thereof, such Material Indebtedness is declared to be or becomes due and payable or is required to be prepaid repaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) redeemed prior to the its stated maturity thereof; or the Parent, the maturity.
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vi) fail to contest on a timely basis in good faith in a timely manner any appointment or proceeding described in Section 7.77.7 or (vii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any of its Material Foreign SubsidiarySubsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such any of its Material Foreign Subsidiary Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any of its Material Foreign Subsidiary Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.8. The Parent, the Borrower 7.8 A judgment or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders other court order for the payment of money in excess of $10,000,000 40,000,000 shall be rendered against the Borrower or any Subsidiary and such judgment or order shall continue without being vacated, discharged, satisfied or stayed or bonded pending appeal for a period of forty-five (or the equivalent thereof in currencies other than Dollars45) days.
7.9 The Unfunded Liabilities of all Single Employer Plans could in the aggregate, aggregate reasonably be expected to result in a Material Adverse Effect or (ii) nonmonetary judgments or orders which, individually or any Reportable Event shall occur in the aggregate, would connection with any Plan that could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.10 Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00065,000,000 or requires payments exceeding $10,000,000 per annum.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00065,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. 7.13 Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created be taken by the Collateral Documents shall at Borrower to assert the invalidity or unenforceability of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Credit Agreement (Oge Energy Corp.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made (or deemed made pursuant to Section 4.2) by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent Lender under or in connection with this Agreement, any Credit ExtensionAdvance, any Letter of Credit, any Application or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan the Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon the Note or of any Revolving Loan or any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Borrowing Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.2, 6.3, 6.10 or 6.3 6.19; or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) the breach by any Credit Party the Borrower of any of the terms or provisions of any of Section 4.1.1 (to 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18 or 6.20 which is not remedied within 10 days after written notice from the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementLender.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond other than the applicable grace period with respect thereto, if any)Obligations) in an aggregate principal amount exceeding $2,000,000 when due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement or agreements under which Material any Indebtedness (other than the Obligations) in an aggregate principal amount exceeding $2,000,000 was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries (other than the Obligations) in an aggregate principal amount exceeding $2,000,000 shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Domestic Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion substantial part of its Propertyproperty, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Domestic Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary the Borrower or any Substantial Portion of its PropertyDomestic Subsidiaries or any substantial part of its property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Domestic Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. The ParentAny Foreign Subsidiary shall have taken or instituted or permitted to be taken or instituted any action or proceeding, or any such action or proceeding is instituted against such Foreign Subsidiary, whereby a substantial amount of its property shall or may be assigned or in any manner transferred or delivered to any receiver, assignee, liquidator or other Person, whether appointed by such Foreign Subsidiary or by a court or by any governmental authority or any law, whereby such property shall or may be distributed among the creditors of such Foreign Subsidiary, provided the aggregate claims of all such creditors against such Foreign Subsidiary or against all such Foreign Subsidiaries shall exceed $1,000,000 and such action or proceeding remains undismissed or unstayed on appeal for a period of 90 days; or any governmental authority having jurisdiction shall have taken or instituted any action or proceeding for the dissolution or disestablishment of any Foreign Subsidiary or for the suspension of its operations, provided the assets of any such Foreign Subsidiary or the aggregate assets of all such Foreign Subsidiaries shall exceed $500,000 and such action or proceeding remains undismissed or unstayed on appeal for a period of 90 days; or all of the property of any Foreign Subsidiary shall have been condemned, seized or appropriated, provided the net assets of any such Foreign Subsidiary or the aggregate net assets of all such Foreign Subsidiaries shall exceed $1,000,000; or the total of all claims against any Foreign Subsidiary or all Foreign Subsidiaries resulting from any action or proceeding described in this Section 7.8 and the amount of assets or net assets, as the case may be, of any Foreign Subsidiary or all Foreign Subsidiaries which are subject to any action, proceeding, condemnation, seizure or appropriation described in this Section 7.8 shall exceed $1,000,000.
7.9. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of all or any substantial portion of the property of the Borrower or any Subsidiary of its Subsidiaries.
7.10. The Borrower or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect1,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occurfaith.
7.11. The Parent Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $10,000,000; or any Reportable Event shall occur in connection with any Plan; or the Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all Unfunded Liabilities of all Single Employer Plans and all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification)liability, exceeds $20,000,00010,000,000.
7.12. The Parent Any court, government or governmental agency shall find or hold, or formally notify the Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan Subsidiary, that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of has violated any proceeding federal, state or investigation pertaining to local environmental, health or safety law or regulation, or (ii) bears responsibility for any removal or remedial or similar action in connection with the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or is otherwise liable in any manner in connection with any such release; and such finding, holding or notification could reasonably be expected (ii) violate taking into account the expected outcome of any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability legal appeals available to the Parent, the Borrower or such Subsidiary, as well as the likelihood and extent of contribution from any Subsidiary in an amount equal other Persons who may be jointly and severally liable with the Borrower or such Subsidiary) to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed have a material adverse effect on appeal and being appropriately contested in good faiththe ability of the Borrower to perform its obligations under the Loan Documents.
7.147.13. Any Loan Document Change in Control shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Section 8.1 Any representation Borrower shall fail to pay when due any principal of any Loan, shall fail to pay within one Business Day of when due any Reimbursement Obligation, or warranty shall fail to pay within three Business Days of when due any interest on any Loan or any LC Fee or other fee or other amount payable hereunder; or
Section 8.2 The Company shall fail to observe or perform any covenant contained in Sections 6.1(d), Section 6.3, Section 6.4, Section 6.9, Sections 7.1 through 7.10, inclusive, Section 7.12 or Section 7.13; or
Section 8.3 The Company shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those covered by Section 8.1 or 8.2 above), or the Company or any Subsidiary shall fail to observe or perform any covenant or agreement contained in any other Loan Document, for thirty (30) days after the earlier of (i) the first day on which a responsible officer of the Company or Subsidiary has knowledge of such failure, or (ii) written notice thereof has been given to the Company or Subsidiary by a Lender; or
Section 8.4 Any representation, warranty, certification or statement made or deemed made by or on behalf of the Parent, Company in Article 5 or by or on behalf of the Borrower Company or any Subsidiary to the Lenders or the Agent in, under or in connection with this Agreement, any Credit ExtensionLoan Document, or any certificate certificate, financial statement or information other document delivered in connection with this Agreement or pursuant to any other Loan Document Document, shall be false prove to have been incorrect in any material respect on the date as of which when made (or deemed made.); or
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan Section 8.5 The Company or any Commitment Fee, LC Fee or other Obligations under Subsidiary shall fail to make any payment in respect of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower Indebtedness outstanding (other than a breach the Loans) in an aggregate amount in excess of $20,000,000 when due or within any applicable grace period; or
Section 8.6 Any event or condition shall occur which constitutes a Default under another Section results in the acceleration of this Article VIIthe maturity of Significant Obligations or the purchase of Significant Obligations by the Company (or its designee) or any other Credit Party such Subsidiary (or its designee) prior to the scheduled maturity thereof or enables (or, with the giving of any notice or lapse of time or both, would enable) the terms or provisions holders of this Agreement Significant Obligations or any other Loan Document Person acting on such holders’ behalf to which it is a party which is not remedied within accelerate the maturity thereof or require the purchase thereof by the Company (ior its designee) five or such Subsidiary (5or its designee) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender prior to the Borrower of any scheduled maturity thereof, without regard to whether such holders or other such breach.
7.5. Failure of the Parent, the Borrower Person shall have exercised or any Subsidiary waived their right to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingdo so, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary Significant Obligations shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or
Section 8.7 The Company or any Subsidiary shall not commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any Substantial Portion of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) shall take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 foregoing, or (vi) shall fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.8.8; or
7.7. Without Section 8.8 An involuntary case or other proceeding shall be commenced against the application, approval or consent of any Credit Party Company or any Material Foreign SubsidiarySubsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, trusteeliquidator, examiner, liquidator custodian or other similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary of it or any Substantial Portion of its Propertyproperty, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged involuntary case or such other proceeding continues shall remain undismissed or and unstayed for a period of 60 consecutive 45 days.
7.8. The Parent, ; or an order for relief shall be entered against the Borrower Company or any Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or
Section 8.9 An ERISA Event shall fail within 60 days have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to pay, bond or otherwise discharge one or more result in liability of the Company and its Subsidiaries in an aggregate amount exceeding (i) $20,000,000 in any Fiscal Year or (ii) $40,000,000 in the aggregate from and after the Effective Date; or
Section 8.10 One or more judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate20,000,000, or (ii) one or more nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under shall be rendered and finally adjudicated against the Parent’s Company or any Subsidiary’s insurance policies., and such judgment(s) or order(s) shall continue unsatisfied and unstayed for a period of 45 days; or
7.9. Any formal step is taken to terminate any Plan, other than a standard termination Section 8.11 A federal tax lien shall be filed against the Company under Section 4041(b) 6323 of ERISA, the Code or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien lien of the PBGC shall be filed against the Company under Section 302(f) 4068 of ERISA.ERISA and in either case such lien shall remain undischarged for a period of 25 days after the date of filing; or
7.10. Section 8.12 Any Change in Control shall occur.; or
7.11. The Parent Section 8.13 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any other member portion of the Controlled Group Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve‑month period ending with the month in which any such action occurs, constitutes a Substantial Portion; or
Section 8.14 Any Guaranty shall have been notified by fail to remain in full force or effect or any action shall be taken to discontinue or to assert the sponsor invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a Multiemployer Plan party, or any Guarantor shall deny that it has incurredany further liability under any Guaranty to which it is a party, pursuant to Section 4201 of ERISA, withdrawal liability or shall give notice to such Multiemployer Plan effect; or
Section 8.15 Any Collateral Document shall for any reason (other than solely as the result of an act or omission of the Agent or a Lender) fail to create a valid and perfected first priority security interest, subject to the Intercreditor Agreement, in an amount which, when aggregated with all other amounts required any Collateral purported to be paid to Multiemployer Plans covered thereby, except as permitted by the Parent terms of this Agreement or any other member of Collateral Document, or, due to any action by the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent Company or any other member of the Controlled Group shall have been notified its Subsidiaries not consented to by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminatedRequired Lenders, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken by the Company or any of its Subsidiaries not consented to by the Required Lenders to discontinue or to assert that its obligations thereunder are discontinuedthe invalidity or unenforceability of any Collateral Document, invalid or unenforceable any Borrower or any Guarantor shall fail to comply with any of the terms or provisions of any Collateral Document if the failure continues beyond any period of grace provided for any reason (other than those enumerated in the first parenthetical above); the Liens created by the applicable Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the any Borrower or any Subsidiary to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, due or (ii) any Reimbursement Obligation within one Business Day after the same becomes dueObligation, or (iii) interest upon any Revolving Loan Loan, any commitment fee or any Commitment LC Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.3, 6.4, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25.
7.4. The breach by the any Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after the Parent’s receipt of written notice of such breach from the Administrative Agent or any Lender to the Borrower of any other such breacha Lender.
7.5. Failure of the Parent, the any Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the any Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the any Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the any Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Borrower or any Material Foreign Active Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of the Property of the Parent and its PropertySubsidiaries, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership other organizational action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that should three (3) or more Subsidiaries that are not Active Subsidiaries be subject to events, occurrences or actions set forth in this Section 7.15 7.6, an Event of Default shall not apply on any date with respect be deemed to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieshave occurred hereunder.
Appears in 1 contract
Samples: Credit Agreement (Arcbest Corp /De/)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Transaction Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan Note when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.23.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries or NTC to pay any Indebtedness in the aggregate in excess of $100,000 when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries or NTC in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness in the aggregate in excess of $100,000 was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries or NTC in the aggregate in excess of $100,000 shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries or NTC shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries or NTC shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, or NTC, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or NTC or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries or NTC and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of the Borrower and its Subsidiaries or NTC which, when taken together with all other Property of the Borrower and its Subsidiaries or NTC so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect100,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Borrower shall incur Unfunded Liabilities or any Reportable Event shall occur in Control shall occurconnection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000Plan.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000occurs.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, or any violation of any federal, state or local environmental, health or safety law or regulation (ii) violate any Environmental Lawincluding, without limitation, those relating to the Cumulative Leakage Index), which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Change in Control shall occur.
7.15. The occurrence of any "default," as defined in any Transaction Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with other than this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its termsthe Notes) or the breach of any Credit Party shall assert that its obligations thereunder are discontinued, invalid of the terms or unenforceable for provisions of any reason Transaction Document (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Documentthe Notes)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors default or purchasers in respect breach continues beyond any period of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders Lenders, any Issuer or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false incorrect in any material respect on the date as of which made or deemed made.
7.2. Nonpayment 7.2 The failure or refusal of any Obligor to (ia) pay the principal of any Revolving of the Obligations, or any part thereof, as it becomes due in accordance with the terms of the Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes dueDocuments, or (iiib) pay interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under on any of the Obligations, or any part thereof, or any other amount or fee under the terms of this Agreement and the other Loan Documents Documents, within five (5) Business Days after such interest, fee or other Obligation it becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 Section 6.1.2, 6.1.9, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.8 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.2.9.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within or by any Obligor of any other Loan Document and, if capable of being remedied, such breach shall remain unremedied for 30 days after the earlier of (i) five (5) Business Days after an Authorized Officer of the occurrence thereof with respect to any breach Borrower obtaining knowledge of Section 6.1 and such breach, or (ii) thirty (30) days after written notice from thereof being given to the Borrower by any Lender, the Agent or any Lender to the Borrower Issuer.
(a) Failure of any other such breach.
7.5. Failure of the Parent, the Borrower Obligor or any Subsidiary (other than any Project Financing Subsidiary) of an Obligor to pay when due (subject to any Material Indebtedness (beyond the applicable grace period with respect theretoperiod), if any)whether by acceleration or otherwise, any Debt (other than the Obligations and other than the Existing Xxxxxx Subordinated Debt and other than the CUSA Assumed Debt) aggregating for all of the Obligors and their respective Subsidiaries in excess of $40,000,000 in principal amount; or (b) the default by the Parent, the Borrower any Obligor or any Subsidiary (other than any Project Financing Subsidiary) of an Obligor in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness any Debt (other than the Obligations and other than the Existing Xxxxxx Subordinated Debt and other than the CUSA Assumed Debt) aggregating for all of the Obligors and their respective Subsidiaries (other than any Project Financing Subsidiary) in excess of $40,000,000 in principal amount was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or other event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any Debt to cause such agreement to cause, such Material Indebtedness Debt to become due prior to its stated maturity and such default, event or condition continues for more than 30 days; provided, however, that in the event the rights of any holder or holders of such Debt to accelerate such Debt have been terminated by cure of such default or written waiver by the holder of such Debt, such default shall not thereafter constitute a Default hereunder until such time as the right of such holder or holders to accelerate such Debt again arises; (c) any Debt (other than the Obligations and other than the Existing Xxxxxx Subordinated Debt and other than the CUSA Assumed Debt) of any of the Obligors or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of their respective Subsidiaries aggregating for all of the Parent, the Borrower or any Subsidiary Obligors and their respective Subsidiaries in excess of $40,000,000 in principal amount shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; (d) any of the Existing Xxxxxx Subordinated Debt shall be declared to be due and payable or required to be prepaid prior to the Parent, stated maturity thereof and shall not be paid (or such acceleration rescinded) within 30 days of the date on which it is required to be so paid; or (e) demand for payment shall be made for all or any part of the CUSA Assumed Debt prior to the stated maturity thereof and such payment shall not be made (or such demand rescinded) on or before the earlier of (i) 30 days following such demand or (ii) the date upon which the holder thereof commences proceedings to collect such payment.
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Subsidiaries (other than any Project Financing Subsidiary) or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 7.6, (vi) not pay, or admit in writing its inability to pay, its debts generally as they become due. or (vivii) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign of its Subsidiaries (other than any Project Financing Subsidiary), or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary or such Guarantor or any Substantial Portion of its Propertythe Property of any of the foregoing, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries (other than any Project Financing Subsidiary) or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 The Parent, failure of the Borrower or any Subsidiary shall fail of the Borrower (other than any Project Financing Subsidiary) to have stayed or discharged within 60 a period of thirty (30) days to payafter the commencement thereof any attachment, bond sequestration, or otherwise discharge one or more (i) judgments or orders for the payment similar proceeding against any of money in excess its assets having a fair market value of $10,000,000 (25,000,000 or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesmore.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. 7.9 Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any 7.10 Any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationSubsidiary Guaranty, or possession is required herein or therein) in favor any Guarantor shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect provisions of Off-Balance Sheet Liabilities of the Parent, any Subsidiary Guaranty to which it is a party, or any SPV Guarantor denies that it has any further liability under any Subsidiary Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) gives notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilitieseffect; provided, however, that this Section 7.15 no termination of a Subsidiary Guaranty resulting from the merger of one Subsidiary of the Borrower which has executed a Subsidiary Guaranty into another Subsidiary of the Borrower which has executed a Subsidiary Guaranty shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation constitute a Default so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity Subsidiary Guaranty of the facility evidencing corporation surviving such Off-Balance Sheet Liabilitiesmerger remains in full force and effect and that any release or termination of a Subsidiary Guaranty pursuant to Section 6.1.3 shall not constitute a Default.
Appears in 1 contract
Samples: Credit Agreement (NGC Corp)
Defaults. The occurrence and continuance of any one or more of the following events shall constitute a Default:
7.1. Any material representation or warranty made or deemed made under Article V by or on behalf of the Parent, the Borrower Company or any Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, Agreement or any certificate or information other document delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Note, Swing Loan or Reimbursement Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Note, Swing Loan or Reimbursement Obligation or 104 of any Commitment Fee, LC Fee facility fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower Company of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.9, 6.10, 6.12, 6.13, 6.15, 6.16, inclusive6.18, Sections 6.18 through 6.226.23, inclusive6.24, or Section 6.24 or (ii) 6.25, 6.27, ------------------------------------------------------------------------------- 6.28 and 6.34. ---- ----
7.4. The breach by any Credit Party the Company of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 6.1 which is not remedied within fifteen days of the Security Agreementinitial occurrence ----------- of such breach.
7.47.5. The breach by the Borrower Company (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2, 7.3 or 7.4) or any other Credit Party of any of the terms or provisions of ---------------------------- this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.57.6. Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay Indebtedness in an aggregate amount equal to or greater than $5,000,000 (or the Equivalent Amount of Indebtedness denominated in a currency other than Dollars) when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, Indebtedness in such Material Indebtedness aggregate amount to become due prior to its stated maturity maturity; or Indebtedness in such aggregate amount of the Company or any commitment to lend under any such agreement to be terminated prior to of its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentas a result of the sale of an asset securing such Indebtedness) prior to the stated maturity thereof; or the Parent, the .
7.7. Any Borrower or any Material Subsidiary shall not (i) commence a voluntary case under any bankruptcy, insolvency or other similar law as now or hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iiiiv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws any bankruptcy, insolvency or other similar law as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vvi) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 7.7 or (vivii) fail ----------- to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.7.8. -----------
7.77.8. Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party any Borrower or such any Material Foreign Subsidiary or any Substantial Portion of its Propertythe Property of any such Person, or a proceeding described in Section 7.6(iv7.7(iv) shall be instituted against any Credit Party Borrower or any --------------- 105 Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.87.9. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Property of any Borrower or any Material Subsidiary which, when taken together with all other Property of any Borrower and the Material Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.10. The Company or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof Equivalent Amount if denominated in currencies a currency other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect), which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occurfaith.
7.11. The Parent Unfunded Liabilities of all Single Employer Plans shall exceed in the aggregate $5,500,000, or any other member of the Controlled Group Reportable Event shall occur in connection with any Plan which could reasonably be expected to have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000Material Adverse Effect.
7.12. The Parent Company or any other member of the Controlled Group its Subsidiaries shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation proceedings pertaining to the spill, release or disposal by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries, or any other Person of any toxic toxic, dangerous or hazardous waste or substance into the environment, or (ii) violate to any Environmental Lawviolation of any federal, whichstate, regional, departmental or local environmental, health or safety law or regulation, which could reasonably be expected to result in total liability to the Company or any of its Subsidiaries, in the case aggregate, in excess of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faitha Substantial Portion.
7.147.13. Any Loan Document The obligations of the Company under Article IX hereof shall fail to ---------- remain in full force or effect against or any Credit Party party thereto action shall be taken to discontinue or to assert the invalidity or unenforceability of any of such obligations, or the Company shall deny that it has any further liability under such Article IX, or ---------- shall give notice to such effect.
7.14. Any Change in Control shall occur.
7.15. At any time, for any reason, (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other i) any Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert as a whole that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in materially affects the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor ability of the Agent, having or any of the priority contemplated by Lenders to enforce the Obligations or enforce their rights against the Collateral Documents (except ceases to be in full force and effect or the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary Company or any SPV of its Subsidiaries party thereto seeks to require repudiate its obligations thereunder and the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal Liens intended to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof created thereby are, or the expiry date of Company or any grace period related thereto under the agreement evidencing such Off-Balance Sheet LiabilitiesSubsidiary seeks to render such Liens, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Eventinvalid and unperfected, or (ii) causes the replacement or substitution Liens on Collateral with a Fair Market Value in excess of $1,000,000 in favor of the ParentAgent contemplated by the Loan Documents shall, at any Subsidiary time, for any reason, be invalidated or any SPV as the servicer under the agreements evidencing otherwise cease to be in full force and effect, or such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 Liens shall not apply on any date with respect to have the priority contemplated by this Agreement or the Loan Documents and such situation contemplated by this subclause (aii) any voluntary request by the Parent, any Subsidiary or any SPV shall continue for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or five (b5) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.Business Days. -------------- 106
Appears in 1 contract
Samples: Credit Agreement (Tokheim Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, any Letter of Credit, any Guaranty or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan or Note or L/C Obligation when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Note or of any Commitment Fee, LC Fee commitment fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower or any of its Subsidiaries of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1, 6.2, 6.3(a), 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.18, Sections 6.18 through 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.24.
7.4. The breach by the Borrower or any of its Subsidiaries (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after receipt of written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness equal to or exceeding $25,000,000 in the aggregate when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any Indebtedness equal to or exceeding $25,000,000 in the aggregate was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness evidenced by or relating to the 2013 Subordinated Notes, the 2015 Subordinated Notes, the 2020 Subordinated Notes, the 2025 Subordinated Convertible Notes, the 2035 Convertible Notes, the Trust PIERS, the New Trust PIERS, or any Permitted Subordinated Debt, or any other Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries equal to or exceeding $25,000,000 in the aggregate (assuming a full draw in the case of any revolving facility (other than Revolving Commitments and Revolving Loans in respect of this Agreement)), shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment payment), or specified mandatory prepayment) shall become mandatorily redeemable, prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or shall admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal United States bankruptcy laws as now or hereafter in effecteffect or cause or allow any similar event to occur under any bankruptcy or similar law or laws for the relief of debtors as now or hereafter in effect in any other jurisdiction, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator liquidator, monitor or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal United States bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its property or its debts under any law relating to bankruptcy, insolvency or reorganization or compromise of debt or relief of debtorsdebtors as now or hereafter in effect in any jurisdiction, or any organization, arrangement or compromise of debt under the laws of its jurisdiction of incorporation or fail to promptly file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vif) fail to contest on a timely basis in good faith faith, or consent to or acquiesce in, any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or similar official shall be appointed (either privately or by a court) for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each, a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any Subsidiary shall fail within 60 days to paysuch Condemnation occurs, bond constitutes a Substantial Portion.
7.9. Any judgment or otherwise discharge one or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) 25,000,000 in the aggregateaggregate shall be rendered against the Borrower or any Subsidiary of the Borrower, and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) nonmonetary judgments there shall be a period of 60 consecutive days during which a stay of enforcement of such judgment or orders whichorder, individually by reason of a pending appeal or otherwise, shall not be in effect.
7.10. An ERISA Event shall have occurred that, in the aggregateopinion of the Required Lenders, would when taken together with other ERISA Events that have occurred, could reasonably be expected to result in liability to the Borrower and the Subsidiaries in an aggregate amount exceeding $15,000,000.
7.11. Any non-monetary judgment or order shall be rendered against the Borrower or any Subsidiary of the Borrower that could reasonably be expected to have a Material Adverse Effect, and there shall be a period of 60 consecutive days during which judgment(s)a stay of enforcement of such judgment or order, in any such case, is/are not (a) stayed on by reason of a pending appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Planotherwise, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesin effect.
Appears in 1 contract
Samples: Credit Agreement (Omnicare Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Facility Document, any Letter of Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Facility Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (ia) any principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes when due, or (iiib) any interest upon any Revolving Loan or any Commitment Fee, LC Fee commitment or other Obligations fee or obligations under any of the Loan Facility Documents within five (5) Business Days days after such interest, fee written notice from the Administrative Agent or other Obligation becomes dueany Lender.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of 2.8, 6.2, 6.3, Sections 6.10 through 6.16, inclusive6.13, Sections 6.18 6.15 through 6.22, inclusive, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security AgreementSections 6.22 through 6.23.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VIISections 7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days (or in the case of Section 6.14, ten (10) days) after the Borrower has knowledge thereof or written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay any Indebtedness aggregating in excess of $2,500,000 when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)due; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material any such Indebtedness was created or is outstandinggoverned, or the occurrence of any other event shall occur or condition existexistence of any other condition, the effect of any of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material such Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the .
7.6 The Borrower or any Subsidiary shall not pay, or admit in writing of its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Subsidiaries shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.6, (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.7 or (g) become unable to pay, not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 thirty (30) consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 thirty (30) days to pay, bond or otherwise discharge one or more (ia) final, nonappealable judgments or orders for the payment of money in excess of $10,000,000 2,500,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (iib) final, nonappealable nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. 7.10 Any formal step is taken to terminate Reportable Event shall occur in connection with any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0002,500,000.
7.12. 7.12 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0002,500,000.
7.13. 7.13 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (ia) be the subject of to any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (iib) violate any Environmental Law, which, in the case of an event described in clause (ia) or clause (iib), could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any “default”, as defined in any Facility Document (other than this Agreement) or the breach of any of the terms or provisions of any Facility Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16 There shall occur a change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries which has resulted in liability to the Parent, the a Material Adverse Effect.
7.17 The Borrower or any Subsidiary in an amount equal of its Subsidiaries incurs or becomes subject to $20,000,000 action or morethreatened action of any Governmental Authority, including, without limitation, a fine, penalty, cease and desist order or revocation, suspension or limitation of a License, the effect of which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithcould reasonably be expected to have a Material Adverse Effect.
7.14. 7.18 Any Loan Security Document shall for any reason fail to create a valid and perfected, first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of such Security Document, or any Facility Document, once executed, shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Facility Document.
7.19 Lloyd’s shall draw under a Letter of Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created except as permitted by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor terms of the Agent, having the priority contemplated Lloyd’s Comfort Letter or Lloyd’s shall advise that it will not abide by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities terms of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesLloyd’s Comfort Letter.
Appears in 1 contract
Samples: Funds at Lloyd’s Letter of Credit Agreement (Navigators Group Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any other Loan Document, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when duedue or any payment under the Guaranty when required, (ii) any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Section 6.2, inclusive6.3, Sections 6.18 through 6.22, inclusive, or Section 6.24 or 6.4 (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (other than with respect to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3last sentence thereof), 4.1.3 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.17.
7.4. The breach by the Borrower or any Guarantor (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Administrative Agent or any Lender to notifies the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries to pay when due any payment (whether of principal, interest or any other amount) in respect of any Material Indebtedness (beyond and the expiration of any applicable grace period with respect thereto, if any); or the default by the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event of default shall occur or condition existoccur, the effect of which default, default or event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, any portion of such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any portion of Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Article VII Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors (excluding any dissolution or liquidation permitted under Section 6.10 hereof) or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Article VII Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Article VII Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Article VII Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 sixty (60) consecutive days.
7.8. The Parent, the Borrower or any Subsidiary of its Article VII Subsidiaries shall fail within 60 thirty (30) days to pay, bond obtain a stay with respect to, or otherwise discharge one or more (i) judgments or orders for the payment of money in excess (to the extent not fully covered by insurance) of $10,000,000 50,000,00075,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith faith, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any of its Article VII Subsidiaries to enforce any such judgment.
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $50,000,00075,000,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) paid an ERISA Event shall have occurred that, in full or otherwise fully covered (subject the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than have a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAMaterial Adverse Effect.
7.10. Any Change in Control shall occur.
7.11. The Parent or Except in connection with the release of any other member Guarantor pursuant to the terms of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurredGuaranty, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession is required herein or therein) in favor any Guarantor shall fail to comply with any of the Agentterms or provisions of any Guaranty to which it is a party, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV Guarantor shall deny that it has any further liability under any Guaranty to require the amortization or liquidation of such Off-Balance Sheet Liabilities as which it is a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilitiesparty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28 and 6.29.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) this Agreement or (ii) any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any), in each case which is not remedied within thirty (30) days after the earlier to occur of (x) written notice from the Administrative Agent or any Lender to the Borrower or (y) an Authorized Officer otherwise become aware of any such breach.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due any Material Indebtedness (subject to any applicable grace period with respect thereto, if any, set forth in the Material Indebtedness Agreement evidencing such Material Indebtedness) which failure has not been (i) timely cured and (ii) waived in writing by the requisite holders of such Material Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement and such default has not been (x) timely cured and (y) waived in writing by the requisite holders of the Material Indebtedness in respect thereof, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full otherwise not covered by a creditworthy insurer or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesindemnitor.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) 7.10 The Unfunded Liabilities of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control all Single Employer Plans shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds exceed $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, 1,000,000 in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) Reportable Event shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, connection with any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesPlan.
Appears in 1 contract
Samples: Credit Agreement (Res Care Inc /Ky/)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) three Business Days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower Company of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. The breach by any Loan Party (i) of Section 6.1 which is not remedied within ten days after the Borrower occurrence of such breach or (ii) (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the other terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days thirty days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration datedate (or, in the case of any Receivables Facility Attributable Indebtedness, cause such Indebtedness to amortize or liquidate or terminate the reinvestment of collections or proceeds of receivables); or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof, provided, that the occurrence of any of the foregoing with respect to Receivables Facility Attributed Indebtedness shall not constitute a Default hereunder so long as the aggregate outstanding amount thereof does not exceed the Available Aggregate Revolving Loan Commitment; or the Parent, occurrence of an early termination under any Rate Management Transaction resulting from (i) any event of default under such Rate Management Transaction as to which the Borrower Company or any Subsidiary is the defaulting party or (ii) any termination event as to which the Company or any Subsidiary is an affected party and, in either event, the termination value or other similar obligation owed by the Company or such Subsidiary as a result thereof is in excess of $10,000,000 and remains unpaid; or the Company or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party Borrower or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as any Federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as any Federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to Federal, state or foreign bankruptcy, insolvency insolvency, administrative receivership or reorganization similar law now or relief hereafter in effect or fail to file an answer or other pleading denying the material allegations of debtorsany such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party a Borrower or such any Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party Borrower or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The ParentAny court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of the Company and its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Company or any of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $25,000,000, or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has Reportable Event shall have occurred with respect to any Plan sufficient that, together with all other Reportable Events that have occurred and are continuing, could reasonably be expected to give rise result in liability to the Company and its Subsidiaries in an aggregate amount in excess of $20,000,000, or any Single Employer Plan shall have any Unfunded Liabilities for which a Lien minimum funding waiver request has been filed under Section 302(f) 412 of the Code or Section 302 of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent Company or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Company or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00020,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against or any Credit action shall be taken to discontinue or to assert the invalidity or unenforceability of any Loan Document, or any Loan Party party thereto (except shall fail to comply with any of the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement terms or such other provisions of any Loan Document to which it is a party, or such any Loan Party shall deny that it has any further liability under any Loan Document has expired to which it is a party, or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable give notice to such effect.
7.13. Any Collateral Document shall for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute fail to create a valid and perfected Lien on first priority security interest in any material portion of the Collateral intended purported to be covered thereby (to thereby, except as permitted by the extent perfection by filing, registration, recordationterms of any Collateral Document, or possession is required herein any Collateral Document shall fail to remain in full force or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary effect or any SPV action shall be taken to require discontinue or to assert the amortization invalidity or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment unenforceability of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event Collateral Document. 7.14. Any Change in Control shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesoccur.
Appears in 1 contract
Samples: Credit Agreement (Actuant Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Parent Guarantor or any Subsidiary its Subsidiaries to the Lenders or the Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan within one five Business Day Days after written notice from the Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent Guarantor or the Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.13, 6.14, 6.16, inclusive, Sections 6.18 through 6.22, inclusive, 6.17 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.18.
7.4. 7.4 The breach by the Borrower or any Guarantor (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2 or 7.3) or any other Credit Party of any of the terms or provisions of this Agreement or any other Table of Contents Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAgent.
7.5. 7.5 Failure of the Parent, the Borrower Parent Guarantor or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Management Transaction aggregating in excess of $15,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Parent Guarantor or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Parent Guarantor or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Parent Guarantor or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Parent Guarantor or any Material Foreign Subsidiary of its Subsidiaries, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Parent Guarantor or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Parent Guarantor or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary portion of the Property of the Parent Guarantor or any of its Subsidiaries which, when taken together with all other Property of the Parent Guarantor and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve–month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to have a Material Adverse Effect.
7.9 The Parent Guarantor or any of its Subsidiaries shall fail within 60 90 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or 15,000,000 in aggregate amount for the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse EffectParent Guarantor and its Subsidiaries, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesappeal.
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts Table of Contents aggregating in excess of $15,000,000 which it shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant become liable to Section 4201 pay under Title IV of ERISA, withdrawal liability ; or notice of intent to such Multiemployer terminate a Single Employer Plan with Unfunded Liabilities in an amount which, when aggregated with all other amounts required to excess of $15,000,000 (a “Material Plan”) shall be paid to Multiemployer Plans filed under Section 4041(c) of ERISA by the Parent or any other member of the Controlled Group as withdrawal Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (determined as other than for premiums under Section 4007 of the date of such notification)ERISA) in respect of, exceeds $20,000,000.
7.12. The Parent or to cause a trustee to be appointed to administer any other member of the Controlled Group Material Plan; or a condition shall have been notified by the sponsor of exist that could reasonably be expected to result in PBGC obtaining a Multiemployer decree adjudicating that any Material Plan that such Multiemployer Plan is in reorganization must be terminated; or is being terminatedthere shall occur a complete or partial withdrawal from, or a default, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to, one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation for withdrawal liability in reorganization or being terminated have been or will be increased, excess of $15,000,000 in the aggregate, over the amounts contributed to such Multiemployer Plans aggregate amount for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000Controlled Group.
7.13. 7.11 The Parent, the Borrower or any Subsidiary shall (i) be the subject occurrence of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person Change of Control.
7.12 The occurrence of any toxic or hazardous waste or substance into the environment“default”, as defined in any Loan Document, or (ii) violate the breach of any Environmental Law, which, in of the case terms or provisions of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or moreLoan Document, which liability is not paid, bonded default or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithbreach continues beyond any period of grace therein provided.
7.14. 7.13 Any Loan Document Guaranty shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken to discontinue or assert the invalidity or unenforceability of any Guaranty by any Guarantor, or any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a party, or any Guarantor denies that it has any further liability under any Guaranty to which it is a party, or gives notice to such effect.
7.14 The Borrower shall fail to have an initial rating issued by S&P within 30 days of the closing of the Omni Acquisition with respect to the extent such Credit Party has been released from its obligations thereunder in accordance Borrower’s senior unsecured long-term debt securities (with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); guarantee of the Liens created by the Collateral Documents shall at any time not constitute a valid Parent Guarantor and perfected Lien on the Collateral intended to be covered thereby (after giving effect to the extent perfection Omni Acquisition) of BBB or better and an initial rating issued by filing, registration, recordation, or possession is required herein or therein) in favor Xxxxx’x within 30 days of the Agent, having closing of the priority contemplated by the Collateral Documents (except Omni Acquisition with respect to the extent such Liens have been released in accordance Borrower’s senior unsecured long-term debt securities (with this Agreement the guarantee of the Parent Guarantor and after giving effect to the Omni Acquisition) of Baa2 or such other Loan Document)better.
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors The Omni Acquisition shall be unwound, reversed or purchasers otherwise rescinded in respect of Off-Balance Sheet Liabilities of the Parent, whole or in any Subsidiary or material part for any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Eventreason, or (ii) causes the replacement Omni Acquisition shall not be consummated on or substitution before May 17, 2002 in accordance with the terms of the Parent, any Subsidiary or any SPV as Loan Documents and the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesOmni Acquisition Documents.
Appears in 1 contract
Samples: Bridge Loan Agreement (Cintas Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Nonpayment of any principal payment due hereunder or under any Note when due.
7.2. Nonpayment of interest upon any Note or of any fee or other payment Obligations under any of the Loan Documents within five (5) Business Days after the same becomes due.
7.3. The breach of any of the terms or provisions of Sections 6.2, 6.4 (with respect to the Borrower), 6.10, 6.11, 6.16, 6.17, 6.19, 6.20, 6.21, 6.22 or 6.23.
7.4. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any material certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made made, provided that the facts or deemed madeconditions giving rise to such falsity are not corrected by the Borrower within thirty (30) days after written notice of such falsity from the Administrative Agent.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.47.5. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2, 7.3 or 7.4) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.57.6. Failure of the Parent, The default by the Borrower or any Subsidiary to pay when other member of the Consolidated Group beyond any applicable notice and cure period in the payment of any amount due any Material Indebtedness (beyond the applicable grace period with respect theretounder, if any); or the default by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in in, any agreement under with respect to (A) Recourse Indebtedness of the Borrower or of any other member of the Consolidated Group if the aggregate amount of Recourse Indebtedness so in default exceeds Twenty Five Million Dollars ($25,000,000) (provided that if the total underlying Indebtedness so in default exceeds the portion which constitutes Recourse Indebtedness, only the portion that constitutes Recourse Indebtedness shall be taken into account in determining such $25,000,000 threshold), or (B) any Non-Recourse Indebtedness of the Borrower or any other member of the Consolidated Group in excess of Seventy Five Million Dollars ($75,000,000) in the aggregate, (any such Indebtedness causing the applicable threshold in clause (A) or clause (B) to be exceeded being referred to herein as “Material Indebtedness is outstanding, Indebtedness”) or any other event shall occur or condition exist, the effect of which default, event causes or condition is to cause, or to permit the holder(s) of permits any such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the . 107599586\V-16 US_Active\115440519\V-15
7.7. The Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.8, or (vi) admit in writing its inability to pay its debts generally as they become due.
7.77.8. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a A receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign any Subsidiary Guarantor or for any Substantial Portion of its Property, the Property of the Borrower or any Subsidiary Guarantor or a proceeding described in Section 7.6(iv7.7(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.87.9. The Parent, the Borrower or any Subsidiary Guarantor shall fail within 60 forty-five (45) days to pay, bond or otherwise discharge one or more (i) any judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies an amount which, when added to all other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually outstanding against the Borrower or any Subsidiary Guarantor would exceed $25,000,000 in the aggregate, would reasonably be expected to have a Material Adverse Effectaggregate in any calendar year, which judgment(s), in any such case, is/are have not (a) been stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.97.10. Any formal step is taken to terminate any Plan, Subsidiary other than a standard termination under Section 4041(bSubsidiary Guarantor shall fail within forty-five (45) days to pay, bond or otherwise discharge any judgments or orders for the payment of ERISAmoney in an amount which, when added to all other judgments or a contribution failure has occurred with respect to orders outstanding against all Subsidiaries which are not Subsidiary Guarantors would exceed $75,000,000 in the aggregate in any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAcalendar year, which have not been stayed on appeal or otherwise appropriately contested in good faith.
7.107.11. An ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding (i) $10,000,000 in any year or (ii) $25,000,000 for all periods.
7.12. Any Change in Control shall occur.
7.117.13. The Parent Failure to complete any direct remediation obligation within the time period permitted by law or any other member governmental order (or within a reasonable time in light of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member nature of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified problem if no specific time period is so established) with respect to material environmental problems at Projects owned by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of its Subsidiaries whose aggregate book values are in excess of $25,000,000 after all administrative hearings and appeals have been 107599586\V-16 US_Active\115440519\V-15 concluded, and if litigation is applicable to such obligation, after a final non-appealable judgment of a court of competent jurisdiction has been entered.
7.14. The occurrence of any proceeding “Default” as defined in any Loan Document or investigation pertaining to the release breach of any of the terms or provisions of any Loan Document, which default or breach continues beyond any period of grace or cure therein provided.
7.15. The attempted disavowal, revocation or termination by the Parent, the Borrower or any Subsidiary or any other Person Loan Party of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesDocuments.
Appears in 1 contract
Samples: Credit Agreement (Inland Real Estate Income Trust, Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any certificate or information delivered in connection with this Agreement or any other Loan Credit Document shall be materially false in any material respect or misleading on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or Loan, any Commitment Fee, and Facility LC Fee Fee, or other Obligations obligations under any of the Loan Credit Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.2, 6.3, 6.10 through 6.16, 6.19 inclusive, Sections 6.18 through 6.22, inclusive, 6.21 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.
7.4. The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Indebtedness aggregating in excess of $1,000,000 or any obligation aggregating in excess of $1,000,000 in respect of a transaction described in Section 6.17 (in either such case, a "Material Indebtedness (beyond the applicable grace period with respect thereto, if anyObligation"); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness Obligation was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement Obligation to cause, such Material Indebtedness Obligation to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness Obligation of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one any judgment or more (i) judgments or orders order for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect1,000,000, which judgment(s), in any such case, is/are is not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $1,000,000 or any Reportable Event shall occuroccur in connection with any Plan that could reasonably be expected to have a Material Adverse Effect.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $250,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Change in Control shall occur.
7.15. The occurrence of any "Event of Default" as defined in any Credit Document (other than this Agreement), or the breach of any of the terms or provisions of any Credit Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided.
7.16. The Subsidiary Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Subsidiary Guaranty, or any Subsidiary shall fail to comply with any of the terms or provisions of the Subsidiary Guaranty, or any Subsidiary shall deny that it has any further liability under the Subsidiary Guaranty, or shall give notice to such effect.
7.17. Any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for unenforceability of any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationDocument, or possession is required herein the Borrower or therein) in favor any Subsidiary shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal Collateral Document applicable to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.it. ARTICLE VIII
Appears in 1 contract
Samples: Credit Agreement (Industrial Distribution Group Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Administrative Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one five Business Day Days after written notice from the Administrative Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Administrative Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.196.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20.6.21.
7.4. 7.4 The breach by the any Borrower (or Guarantor of, or other than a breach which constitutes a Default under another Section of this Article VII) default by any Borrower or any other Credit Party of Guarantor under, any of the terms or provisions of this Agreement or any other Loan Document to (other than a breach or default which it is constitutes a party Default under Section 7.1, 7.2 or 7.3) which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $25,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) voluntarily have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any Subsidiary shall fail within 60 days portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve‑month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to pay, bond or otherwise discharge one have a Material Adverse Effect.
7.9 One or more (i) judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollarsjudgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) in shall be rendered against the aggregateCompany, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or (ii) nonmonetary judgments any action shall be legally taken by a judgment creditor to attach or orders which, individually levy upon any assets of the Borrower or in the aggregate, would reasonably be expected any Subsidiary to have a Material Adverse Effect, which judgment(s), in enforce any such case, is/are judgment which is not (a) effectively stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.for a period of 30 consecutive days;
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall have been notified become liable to pay under Title IV of ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess of $25,000,000 (a “Material Plan”) shall be filed under Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in excess of $25,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that could reasonably be expected to result in PBGC obtaining a decree adjudicating that any Material Plan must be terminated; or the determination by the sponsor PBGC of a Multiemployer Plan that it has incurred, pursuant to Section 4201 liability in excess of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or $25,000,000 on any other member of the Controlled Group as withdrawal liability (determined as pursuant to Section 4062(e) or 4069 of ERISA or by reason of the date application of such notification)Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years excess of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. 7.11 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environmentHazardous Substance, or (ii) violate any violation of any applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.12 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur Change of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesControl.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Nonpayment of any principal payment on any Note when due.
7.2 Nonpayment of interest upon any Note or other payment Obligations under any of the Loan Documents within five (5) Business Days after the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2 through 6.21 and 6.23.
7.4 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit ExtensionLoan, or any material certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. 7.5 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII7.1, 7.2, 7.3 or 7.4) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within fifteen (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (3015) days after written notice from the Administrative Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.6 Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due (A) any Material Recourse Indebtedness in excess of $25,000,000 in the aggregate or (beyond B) any Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in the applicable grace period with respect thereto, if any)aggregate; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingagreement, or any other event shall occur or condition exist, the effect of which default, event causes or condition is to cause, or to permit the holder(spermits (A) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Recourse Indebtedness of the Parent, the Borrower or any Subsidiary shall be declared of its Subsidiaries in excess of $25,000,000 in the aggregate or (B) any Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in the aggregate to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or thereof (provided that the Parent, failure to pay any such Indebtedness shall not constitute a Default so long as the Borrower or its Subsidiaries is diligently contesting the payment of the same by appropriate legal proceedings and the Borrower or its Subsidiaries have set aside, in a manner reasonably satisfactory to Administrative Agent, a sufficient reserve to repay such Indebtedness plus all accrued interest thereon calculated at the default rate thereunder and costs of enforcement in the event of an adverse outcome).
7.7 The Borrower, any Subsidiary shall not payAssignor, any other direct or indirect owner of a Subject Property, or admit in writing its inability to payany Subject Property Owner, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign other Subsidiary having more than $20,000,000 of Equity Value, shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or 7.7, (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.8 or (vii) admit in writing its inability to pay its debts generally as they become due.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a 7.8 A receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower, any Assignor, any other direct or such Material Foreign indirect owner of a Subject Property, or any Subject Property Owner, or any Subsidiary having more than $20,000,000 of Equity Value, or for any Substantial Portion of its Propertythe Property of the Borrower or such Subsidiary, or for any of the Collateral, the Subject Properties or Borrower’s direct or indirect interests therein, or a proceeding described in Section 7.6(iv7.7(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign such Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 ninety (90) consecutive days.
7.8. 7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 sixty (60) days to pay, bond or otherwise discharge one or more (i) any judgments or orders for the payment of money in excess an amount which, when added to all other judgments or orders outstanding against Borrower, any Subsidiary, the Collateral or any of the Subject Properties would exceed $10,000,000 (or the equivalent thereof in currencies other than Dollars) 20,000,000 in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to which have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) been stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesfaith.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.10 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $500,000 per annum.
7.12. 7.11 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000500,000.
7.13. The Parent7.12 Failure to remediate within the time period permitted by law or governmental order, after all administrative hearings and appeals have been concluded (or within a reasonable time in light of the nature of the problem if no specific time period is so established), environmental problems at Properties owned by the Borrower or any Subsidiary shall (i) be of its Subsidiaries or Investment Affiliates if the subject estimated costs of remediation at all such Properties in the aggregate exceed $20,000,000.
7.13 The occurrence of any proceeding or investigation pertaining to the release by the Parent, the Borrower or “Default” as defined in any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such the breach of any of the terms or provisions of any Loan Document has expired Document, which default or terminated in accordance with its terms) or breach continues beyond any Credit Party period of grace therein provided.
7.14 The occurrence of any Material Adverse Effect.
7.15 There shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated occur a “Default” under and as defined in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesUnsecured Credit Agreement.
Appears in 1 contract
Samples: Secured Term Loan Agreement (Developers Diversified Realty Corp)
Defaults. The occurrence of any one or more of the following events shall constitute a an Event of Default (each, an “Event of Default:”):
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this AgreementAgreement (including the exhibits attached hereto), any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed madeconfirmed.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or Loan, any Commitment Fee, LC Fee or any other Obligations obligation under any of the Loan Documents within five two (52) Business Days after the same becomes due (provided, such interest, fee or other Obligation becomes duetwo (2) Business Day grace period shall not apply to payments due on the Facility Termination Date).
7.3. The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.1(a), 6.1(b), 6.1(c), 6.1(d), 6.1(i), 6.1(j), 6.2, 6.3, 6.4, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.18, Sections 6.18 through 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25.
7.4. The breach by the Borrower (other than a breach which constitutes a an Event of Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the earlier of (i) an officer of the Borrower becoming aware of any such breach and (ii) the Administrative Agent or any Lender to notifying the Borrower of any other such breach.
7.5. Failure Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the ParentProperty of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.6. [Intentionally omitted.]
(a) With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $2,500,000 pursuant to Section 430(k) of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect.
7.8. Nonpayment by the Borrower or any Subsidiary to pay of any Rate Management Obligation when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any); or the default breach by the Parent, the Borrower or any Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, Rate Management Transaction or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration date; or any Material Indebtedness transaction of the Parent, type described in the Borrower definition of “Rate Management Transactions,” whether or not any Subsidiary shall be declared to be due and payable Lender or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party or any Material Foreign Subsidiary shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment Affiliate of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it Lender is a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party or such Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesthereto.
7.9. Any formal step is taken to terminate The occurrence of any Plan“default”, as defined in any Loan Document (other than a standard termination under Section 4041(bthis Agreement) or the breach of ERISAany of the terms or provisions of any Loan Document (other than this Agreement), which default or a contribution failure has occurred with respect to breach continues beyond any Plan sufficient to give rise to a Lien under Section 302(f) period of ERISAgrace therein provided.
7.10. Any Change Loan Document (or any material provision thereof) shall fail to remain in Control full force or effect or any action shall occurbe taken to discontinue or to assert the invalidity or unenforceability of any Loan Document (or any material provision thereof), or any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it is a party and which failure continues beyond any period of grace therein provided, or any Guarantor shall deny that it has any further liability under any Guaranty to which it is a party, or shall give notice to such effect.
7.11. The Parent Any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby, except as permitted by the terms of any Collateral Document or the terms hereof, or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Collateral Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or any Loan Party shall assert that its obligations thereunder are discontinuedfail to comply with any of the terms or provisions of any Collateral Document to which it is a party and which failure continues beyond any period of grace therein provided.
7.12. The occurrence of a termination of, invalid or unenforceable for a material default which continues beyond any reason (other than those enumerated period of grace as provided under, any material customer or supply agreement.
7.13. The entry of an order in any of the first parenthetical above); Chapter 11 Cases which stays, modifies or reverses any DIP Order or which otherwise materially adversely affects the Liens created effectiveness of any DIP Order without the express written consent of the Administrative Agent and the Required Lenders, or the filing of any pleading by the Collateral Documents shall at Borrower or any time not constitute a valid and perfected Lien on Affiliate thereof seeking the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor entry of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)an order.
7.157.14. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which Either (i) permits the investors or purchasers appointment in respect of Off-Balance Sheet Liabilities any of the Parent, Chapter 11 Cases of a trustee or of any Subsidiary examiner having expanded powers to operate all or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result part of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur business of the tenth day after the occurrence thereof Borrower or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Eventits Domestic Subsidiaries, or (ii) causes the replacement or substitution conversion of any of the ParentChapter 11 Cases to a case under chapter 7 of the Bankruptcy Code.
7.15. The failure of the Bankruptcy Court to enter a Final Borrowing Order on or prior to May 8, 2019.
7.16. The entry of any order without the prior written consent of the Administrative Agent and the Required Lenders which provides relief from the automatic stay otherwise imposed pursuant to section 362 of the Bankruptcy Code which permits any creditor to realize upon, or to exercise any right or remedy with respect to, any Subsidiary asset of the Borrower or to terminate any license, franchise, or similar agreement, where the exercise of such right or remedy or such realization or termination would reasonably be likely to have a Material Adverse Effect.
7.17. The filing of any application by the Borrower without the express prior written consent of the Administrative Agent and the Required Lenders for the approval of any super-priority claim in any of the Chapter 11 Cases which is pari passu with or senior to the priority of the claims of the Administrative Agent and the Lenders for the Obligations or the Pre-Petition Liabilities, or there shall arise any such super-priority claim under the Bankruptcy Code, except in each instance the Professional Fee Carve Out.
7.18. The payment or other discharge by the Borrower of any Indebtedness or any SPV other “claim” (as defined in the servicer under Bankruptcy Code) incurred prior to the agreements evidencing Petition Date, except the Pre-Petition Liabilities or otherwise as expressly permitted hereunder or the payment of which the Administrative Agent and the Required Lenders have provided their written consent.
7.19. The entry of any order in any of the Chapter 11 Cases which provides adequate protection (other than on account of Liens securing the Pre-Petition Liabilities), or the granting by the Borrower of similar relief in favor of any one or more of their pre-petition creditors, contrary to the terms and conditions of any DIP Order.
7.20. The failure of the Borrower (i) to comply with each and all of the terms and conditions of any DIP Order, or (ii) to materially comply with any other order entered in any of the Chapter 11 Cases if such Offfailure would result in a Material Adverse Effect.
7.21. The filing of any motion by the Borrower or the entry of any order in any of the Chapter 11 Cases: (i)
(A) permitting working capital or other financing (other than ordinary course trade credit or unsecured debt) for the Borrower from any Person other than the Lenders (unless the proceeds of such financing are used to pay in full of all Pre-Balance Sheet Liabilities; providedPetition Liabilities and all Obligations), however(B) granting a Lien on, that this Section 7.15 shall not apply on or security interest in any date of the Collateral, other than with respect to this Agreement or as otherwise permitted herein (unless such Liens are granted in connection with a financing, the proceeds of which are applied to the payment in full of all Pre-Petition Liabilities and all Obligations), (C) except as permitted by this Agreement, permitting the use of any of the Collateral pursuant to section 363(c) of the Bankruptcy Code without the prior written consent of the Administrative Agent and the Required Lenders, (D) permitting recovery from any portion of the Collateral any costs or expenses of preserving or disposing of such Collateral under section 506(c) of the Bankruptcy Code, or (E) dismissing any of the Chapter 11 Cases or (ii) the filing of any motion by the Borrower or any Loan Party (or by any party in interest or any Creditors’ Committee appointed in any of the Chapter 11 Cases) seeking any of the matters specified in the foregoing clause (i) that is not dismissed or denied within thirty (30) days of the date of the filing of such motion (or such later date agreed to in writing by the Administrative Agent).
7.22. The filing of a motion by the Borrower seeking approval of a disclosure statement and a Plan of Reorganization, or the entry of an order confirming a Plan of Reorganization, that does not require repayment in full in cash of all Pre-Petition Liabilities and all Obligations on the effective date of such Plan of Reorganization or confirmation of such Plan of Reorganization is denied by the Bankruptcy Court.
(a) The filing of any voluntary request pleading by the Parent, any Subsidiary Borrower or any SPV for an aboveAffiliate thereof challenging the validity, priority, perfection, or enforceability of the Loan Documents (as defined in the Pre-described amortization Petition Credit Agreement), the Pre-Petition Liabilities, or liquidation so long as any Lien granted pursuant to the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation Pre-Petition Loan Documents, or (b) any scheduled amortization Lien granted pursuant to the Pre-Petition Loan Documents is determined to be null and void, invalid or liquidation at unenforceable by the stated maturity Bankruptcy Court or another court of competent jurisdiction in any action commenced or asserted by any other party in interest in any of the facility evidencing such Off-Balance Sheet LiabilitiesChapter 11 Cases, including, without limitation, the Creditors’ Committee.
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Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be prove to have been materially false in any material respect on the date as of which made or deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one three Business Day Days after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. The material breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.23, 6.24, 6.25, 6.26, 6.27, 6.28, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.29.
7.4. The material breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries to pay when due any Material Indebtedness (beyond other than the applicable grace period with respect thereto, if anyObligations) aggregating in excess of $1,000,000 (“Material Indebtedness”); or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal federal bankruptcy laws Laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal federal bankruptcy laws Laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law Law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, limited liability company or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 30 consecutive days.
7.8. The Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Parent, the Borrower and their Subsidiaries which, when taken together with all other Property of the Parent, the Borrower and their Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion unless Outstanding Credit Exposure is contemporaneously reduced by the Release Price determined in connection therewith by the Required Lenders.
7.9. The Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 2,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAfaith.
7.10. Any Change The Unfunded Liabilities of all Single Employer Plans shall exceed in Control the aggregate $100,000 or any Reportable Event shall occuroccur in connection with any Plan.
7.11. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan Plan, if any, that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $1,000,000 per annum.
7.12. The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan Plan, if any, is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000100,000.
7.13. The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance Hazardous Substance into the environment, or (ii) violate any Applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any “default”, as defined in any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in this Agreement) or the first parenthetical above); the Liens created by the Collateral Documents shall at breach of any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment provisions of any Off-Balance Sheet Liability having an aggregate outstanding principal amount Loan Document (other than this Agreement), which default or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur breach continues beyond any period of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; therein provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Administrative Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one five Business Day Days after written notice from the Administrative Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Administrative Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive, 6.19 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.20.
7.4. 7.4 The breach by the any Borrower (or Guarantor of, or other than a breach which constitutes a Default under another Section of this Article VII) default by any Borrower or any other Credit Party of Guarantor under, any of the terms or provisions of this Agreement or any other Loan Document to (other than a breach or default which it is constitutes a party Default under Section 7.1, 7.2 or 7.3) which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $25,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) voluntarily have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any Subsidiary shall fail within 60 days portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to pay, bond or otherwise discharge one have a Material Adverse Effect.
7.9 One or more (i) judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollarsjudgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) in shall be rendered against the aggregateCompany, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or (ii) nonmonetary judgments any action shall be legally taken by a judgment creditor to attach or orders which, individually levy upon any assets of the Borrower or in the aggregate, would reasonably be expected any Subsidiary to have a Material Adverse Effect, which judgment(s), in enforce any such case, is/are judgment which is not (a) effectively stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.for a period of 30 consecutive days;
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall have been notified become liable to pay under Title IV of ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess of $25,000,000 (a “Material Plan”) shall be filed under Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in excess of $25,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that could reasonably be expected to result in PBGC obtaining a decree adjudicating that any Material Plan must be terminated; or the determination by the sponsor PBGC of a Multiemployer Plan that it has incurred, pursuant to Section 4201 liability in excess of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or $25,000,000 on any other member of the Controlled Group as withdrawal liability (determined as pursuant to Section 4062(e) or 4069 of ERISA or by reason of the date application of such notification)Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years excess of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. 7.11 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environmentHazardous Substance, or (ii) violate any violation of any applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.12 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur Change of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesControl.
Appears in 1 contract
Samples: Credit Agreement (Diebold Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or made, including without limitation those deemed made pursuant to Section 4.2, by or on behalf of the Parent, the Borrower Company or any Subsidiary its Subsidiaries to the Lenders or the Administrative Agent under or in any Loan Document, in connection with this Agreement, any Credit ExtensionLoan or Facility Letter of Credit, or in any certificate or information delivered in writing in connection with this Agreement any Loan Document or in any other certificate or information delivered in writing in connection with any Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) or nonpayment of interest on any Reimbursement Obligation Loan or of any facility fee within one five Business Day Days after written notice from the Administrative Agent that the same becomes has become due, or (iii) interest upon nonpayment of any Revolving Loan or any Commitment Fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes written notice from the Administrative Agent that the same has become due.
7.3. 7.3 The breach by (i) the Parent or the any Borrower of any of the terms or provisions of any of in Sections 6.2 or 6.3 or any of Sections 6.10 through 6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.226.18, inclusive6.19, 6.20 or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.21.
7.4. 7.4 The breach by the any Borrower (or Guarantor of, or other than a breach which constitutes a Default under another Section of this Article VII) default by any Borrower or any other Credit Party of Guarantor under, any of the terms or provisions of this Agreement or any other Loan Document to (other than a breach or default which it is constitutes a party Default under Section 7.1, 7.2 or 7.3) which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachAdministrative Agent.
7.5. 7.5 Failure of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries to pay when due any Indebtedness or Rate Hedging Obligations aggregating in excess of $25,000,000 ("Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness"); or the default by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Company or any Material Foreign Subsidiary of its Subsidiaries, shall (i) voluntarily have an order for relief entered with respect to it under the Federal bankruptcy laws as now any existing or hereafter in effectfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now any existing or hereafter in effect future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts or seeking similar relief under any law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate corporate, company or partnership other action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the its application, approval or consent of any Credit Party or any Material Foreign Subsidiaryconsent, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Company or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Company or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any Subsidiary shall fail within 60 days portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve‑month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and is reasonably likely to pay, bond or otherwise discharge one have a Material Adverse Effect.
7.9 One or more (i) judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 25,000,000 (or the equivalent thereof in currencies other than Dollarsjudgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) in shall be rendered against the aggregateCompany, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or (ii) nonmonetary judgments any action shall be legally taken by a judgment creditor to attach or orders which, individually levy upon any assets of the Borrower or in the aggregate, would reasonably be expected any Subsidiary to have a Material Adverse Effect, which judgment(s), in enforce any such case, is/are judgment which is not (a) effectively stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policies.for a period of 30 consecutive days;
7.9. 7.10 Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall have been notified become liable to pay under Title IV of ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess of $25,000,000 (a “Material Plan”) shall be filed under Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in excess of $25,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that could reasonably be expected to result in PBGC obtaining a decree adjudicating that any Material Plan must be terminated; or the determination by the sponsor PBGC of a Multiemployer Plan that it has incurred, pursuant to Section 4201 liability in excess of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or $25,000,000 on any other member of the Controlled Group as withdrawal liability (determined as pursuant to Section 4062(e) or 4069 of ERISA or by reason of the date application of such notification)Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminateddefault, within the meaning of Title IV Section 4219(c)(5) of ERISA, if as a result of such reorganization with respect to one or termination the aggregate annual contributions of the Parent and the other more Multiemployer Plans which causes one or more members of the Controlled Group (taken as to incur a whole) to all Multiemployer Plans which are then current payment obligation in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years excess of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. 7.11 The Parent, the Borrower Company or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release Release by the Parent, the Borrower Company or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environmentHazardous Substance, or (ii) violate any violation of any applicable Environmental Law, which, in the case of an event described in clause (i) or clause (ii)either case, has resulted in liability could reasonably be expected to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithhave a Material Adverse Effect.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment 7.12 The occurrence of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur Change of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesControl.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. (a) Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. (b) Nonpayment of (i) principal of any Revolving Loan when due, (ii) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) nonpayment of interest upon any Revolving Loan or of any Commitment Feecommitment fee, LC Fee or other Obligations obligations under any of the Loan Documents within five (5) Business Days days after such interest, fee or other Obligation the same becomes due.
7.3. (c) The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through 6.16Article VI, inclusiveSection 6.2, Sections 6.18 through 6.10, 6.11, 6.12, 6.13, 6.14, 6.22, inclusive, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.23.
7.4. (d) The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender Lender; provided, that if such breach can be cured and Borrower begins and is diligently pursuing a cure thereof prior to the expiration of the ten day cure period above provided, then Borrower shall not be in default hereunder if Borrower cures such failure within thirty days after the above provided written notice of any other such breach.
7.5. (e) Failure of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any)Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries or any Guarantor shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party (f) Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 7.1 (f) or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.77.1(g).
7.7. (g) Without the application, approval or consent of any Credit Party Borrower or any Material Foreign Subsidiaryof its Subsidiaries, or any Guarantor, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Guarantor or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.1(f)(iv) shall be instituted against any Credit Party Borrower or any Material Foreign Subsidiary of its Subsidiaries or any Guarantor and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent(h) Any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any Subsidiary portion of the Property of Borrower and its Subsidiaries or any Guarantor which, when taken together with all other Property of Borrower and its Subsidiaries or any Guarantor so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
(i) Borrower, Parent or any of their Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) final judgments or orders for the payment of money in excess of $10,000,000 1,000,000 (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or faith.
(bj) paid The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $1,000,000 or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step (k) Nonpayment by Borrower, Parent or any Subsidiary of any Rate Management Obligation when due or the breach by Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition of "Rate Management Transactions," whether or not any Lender or Affiliate of a Lender is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAparty thereto.
7.10. (1) Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilities.
Appears in 1 contract
Samples: Credit Agreement (Clark Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower Parent or any Material Subsidiary to the Lenders or the Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (ia) principal of any Revolving Loan (other than a Swing Line Loan) when due, (b) principal of any Swing Line Loan (i) within five Business Days of when due if the Aggregate Commitments minus the Aggregate Outstanding Credit Exposure (the “Availability”) on the date such principal payment is due is greater than or equal to the principal amount so due or (ii) when due if the Availability is less than the principal amount so due, (c) nonpayment of interest upon any Loan or of any Facility fee or usage fee, LC Fee, or other obligations under any of the Loan Documents within five days after the same becomes due, or (d) nonpayment of any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under .
7.3 The breach by any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower Borrowers of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.2, 6.3, 6.10 through 6.16, inclusive, Sections 6.18 through 6.22, inclusive, or Section 6.24 or (ii) 6.20.
7.4 The breach by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement.
7.4. The breach by the Borrower Borrowers (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of this Agreement or any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) 30 days after written notice from the Agent or any Lender to the Borrower of any other such breachLender.
7.5. 7.5 Failure of the Parent, the Borrower Parent or any Material Subsidiary to pay when due any Indebtedness aggregating in excess of $75,000,000 (“Material Indebtedness (beyond the applicable grace period with respect thereto, if anyIndebtedness”); or the default by the Parent, the Borrower Parent or any Material Subsidiary in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is outstandinggoverned, or any other event shall occur or condition exist, the effect of which default, default or event or condition is to cause, or to permit the holder(s) holder or holders of such Material Indebtedness or the lender(s) under any such agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower Parent or any Material Subsidiary shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower Parent or any Material Subsidiary shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Parent or any Material Foreign Subsidiary shall (ia) have an order for relief entered with respect to it under the Federal bankruptcy laws (or comparable foreign laws) as now or hereafter in effect, (iib) make a general an assignment for the benefit of creditors, (iiic) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (ivd) institute any proceeding seeking an order for relief under the Federal bankruptcy laws (or comparable foreign laws) as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (ve) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth out in this Section 7.6 or (vif) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Parent or any Material Foreign Subsidiary, Subsidiary a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Parent or such any Material Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv7.6(d) shall be instituted against any Credit Party the Parent or any Material Foreign Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. The Parent7.8 Any court, the Borrower government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Parent and its Material Subsidiaries which, when taken together with all other Property of the Parent and its Material Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent or any Material Subsidiary shall fail within 60 30 days to pay, bond or otherwise discharge one or more (ia) judgments or orders for the payment of money in excess of $10,000,000 25,000,000 (or multiple judgments or orders for the payment of an aggregate amount in excess of $50,000,000) (or the equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or (iib) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate $50,000,000 or any Subsidiary’s insurance policiesReportable Event that could reasonably be expected to have a Material Adverse Effect shall occur in connection with any Plan.
7.9. Any formal step is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. 7.11 The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, incurred withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,00025,000,000 or requires payments exceeding $10,000,000 per annum.
7.12. 7.12 The Parent or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent any Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plans Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,00025,000,000.
7.13. 7.13 The Parent, the Borrower Parent or any Subsidiary of its Subsidiaries shall (ia) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (iib) violate any Environmental Law, which, in the case of an event described in clause (ia) or clause (iib), has resulted could reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in liability to Control shall occur.
7.15 The occurrence of any “default” under any Loan Document (other than this Agreement) or the Parent, breach of any of the Borrower terms or provisions of any Subsidiary in an amount equal to $20,000,000 or moreLoan Document (other than this Agreement), which liability is not paid, bonded default or otherwise discharged within 60 days or which is not stayed on appeal and being appropriately contested in good faithbreach continues beyond any period of grace therein provided.
7.14. Any Loan Document 7.16 The Guaranty shall fail to remain in full force or effect against any Credit Party party thereto (except to the extent such Credit Party has been released from its obligations thereunder in accordance with this Agreement or such other Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party action shall be taken to discontinue or to assert that its obligations thereunder are discontinued, invalid the invalidity or unenforceable for any reason (other than those enumerated in unenforceability of the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordationGuaranty, or possession is required herein or therein) in favor the Parent shall fail to comply with any of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement material terms or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities provisions of the ParentGuaranty to which it is a party, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of Guarantor shall deny that it has any grace period related thereto further liability under the agreement evidencing such Off-Balance Sheet LiabilitiesGuaranty, or (y) shall give notice to such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitieseffect.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one two Business Day Days after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28, 6.29 and 6.30.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) this Agreement or (ii) any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any), in each case which is not remedied within thirty (30) days after the earlier to occur of (x) written notice from the Administrative Agent or any Lender to the Borrower or (y) an Authorized Officer otherwise becomes aware of any such breach.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due any Material Indebtedness (subject to any applicable grace period with respect thereto, if any, set forth in the Material Indebtedness Agreement evidencing such Material Indebtedness) which failure has not been (i) timely cured or (ii) waived in writing by the requisite holders of such Material Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstanding, Agreement or any other event shall occur or condition exist, exist thereunder and such default has not been (x) timely cured or (y) waived in writing by the requisite holders of the Material Indebtedness in respect thereof and the effect of which such default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement Material Indebtedness Agreement to be terminated prior to its stated expiration date; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid in full otherwise not covered by a creditworthy insurer or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s or any Subsidiary’s insurance policiesindemnitor.
7.9. 7.10 Any formal step is taken to terminate Reportable Event shall occur in connection with any Plan, which could reasonably be expected to result in a liability to the Borrower or any other than a standard termination under Section 4041(b) member of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAthe Controlled Group exceeding $5,000,000.
7.10. 7.11 Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation, when due or the breach by the Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto.
7.12 Any Change in of Control shall occur.
7.11. 7.13 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to within the meaning of Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0005,000,000 or requires payments exceeding $5,000,000 per annum.
7.12. 7.14 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0005,000,000.
7.13. 7.15 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the Parent, the Borrower or any Subsidiary or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), which has resulted in liability to the Parent, the Borrower or any Subsidiary of its Subsidiaries in an amount equal to $20,000,000 5,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 45 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any Loan 7.16 This Agreement (including amendments and supplements hereto), the Guaranty Agreement (including amendments and supplements thereto) or any Collateral Document (including amendments and supplements thereto) shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken to assert the extent such Credit Party has been released from its obligations thereunder invalidity or unenforceability of, or which results in accordance with this Agreement the invalidity or such other Loan Document or unenforceability of, any such Loan Document has expired or terminated in accordance with its terms) Document, or any Credit Party shall assert that its obligations thereunder are discontinuedCollateral Document shall, invalid other than as permitted thereby, fail to create or unenforceable maintain for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended security interest in any collateral purported to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the Agent, having the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be remedied or waived within the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet Liabilitiesthereby.
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Defaults. The occurrence of any one or more of the following events shall constitute a Default:
7.1. 7.1 Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any Subsidiary of its Subsidiaries to the Lenders or the Administrative Agent under or in connection with this Agreement, any Credit Extension, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be false in any material respect on the date as of which made or deemed made.
7.2. 7.2 Nonpayment of (i) principal of any Revolving Loan when due, (ii) any Reimbursement Obligation within one Business Day after the same becomes due, or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of the Loan Documents within five (5) Business Days after such interest, fee or other Obligation becomes due.
7.3. 7.3 The breach by (i) the Parent or the Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, inclusive6.17, Sections 6.18 through 6.18, 6.19, 6.20, 6.21, 6.22, inclusive6.23, or Section 6.24 or (ii) by any Credit Party of any of the terms or provisions of any of Section 4.1.1 (to the extent that the non-compliance therewith by such Credit Party would independently give rise to a Default under clause (i) of this Section 7.3)6.24, 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security Agreement6.25, 6.26, 6.27, 6.28 and 6.29.
7.4. 7.4 The breach by the Borrower (other than a breach which constitutes a Default under another Section of this Article VII) or any other Credit Party of any of the terms or provisions of (i) this Agreement or (ii) any other Loan Document to which it is a party which is not remedied within (i) five (5) Business Days after the occurrence thereof with respect to any breach of Section 6.1 and (ii) thirty (30) days after written notice from the Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when due any Material Indebtedness (beyond the applicable grace period with respect thereto, if any), in each case which is not remedied within thirty (30) days after the earlier to occur of (x) written notice from the Administrative Agent or any Lender to the Borrower or (y) an Authorized Officer otherwise become aware of any such breach.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due any Material Indebtedness (subject to any applicable grace period with respect thereto, if any, set forth in the Material Indebtedness Agreement evidencing such Material Indebtedness) which failure has not been (i) timely cured and (ii) waived in writing by the requisite holders of such Material Indebtedness; or the default by the Parent, the Borrower or any Subsidiary of its Subsidiaries in the performance (beyond the applicable grace period with respect thereto, if any) of any term, provision or condition contained in any agreement under which Material Indebtedness is outstandingAgreement and such default has not been (x) timely cured and (y) waived in writing by the requisite holders of the Material Indebtedness in respect thereof, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit the holder(s) of such Material Indebtedness or the lender(s) under any such agreement Material Indebtedness Agreement to cause, such Material Indebtedness to become due prior to its stated maturity or any commitment to lend under any such agreement to be terminated prior to its stated expiration datematurity; or any Material Indebtedness of the Parent, the Borrower or any Subsidiary of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment or specified mandatory prepaymentpayment) prior to the stated maturity thereof; or the Parent, the Borrower or any Subsidiary of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.6. Any Credit Party 7.6 The Borrower or any Material Foreign Subsidiary of its Subsidiaries shall (i) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make a general an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtorsdebtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate or partnership action to authorize or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis in good faith any appointment or proceeding described in Section 7.7.
7.7. 7.7 Without the application, approval or consent of any Credit Party the Borrower or any Material Foreign Subsidiaryof its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official shall be appointed for such Credit Party the Borrower or such Material Foreign Subsidiary any of its Subsidiaries or any Substantial Portion of its Property, or a proceeding described in Section 7.6(iv) shall be instituted against any Credit Party the Borrower or any Material Foreign Subsidiary of its Subsidiaries and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8. 7.8 Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a Substantial Portion.
7.9 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall fail within 60 30 days to pay, bond or otherwise discharge one or more (i) judgments or orders for the payment of money in excess of $10,000,000 5,000,000 (or the equivalent thereof in currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which, individually or in the aggregate, would could reasonably be expected to have a Material Adverse Effect, which judgment(s), in any such case, is/are not (a) stayed on appeal or otherwise being appropriately contested in good faith or (b) paid otherwise not covered by a creditworthy insurer or indemnitor.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed $1,000,000 in full or otherwise fully covered (subject to any applicable deductible) by third-party insurers under the Parent’s aggregate, or any Subsidiary’s insurance policiesReportable Event shall occur in connection with any Plan.
7.9. Any formal step 7.11 Nonpayment by the Borrower or any Subsidiary of any Rate Management Obligation, when due or the breach by the Borrower or any Subsidiary of any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition of "Rate Management Transactions," whether or not any Lender or Affiliate of a Lender is taken to terminate any Plan, other than a standard termination under Section 4041(b) of ERISA, or a contribution failure has occurred with respect to any Plan sufficient to give rise to a Lien under Section 302(f) of ERISAparty thereto.
7.10. 7.12 Any Change in of Control shall occur.
7.11. 7.13 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Parent Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification), exceeds $20,000,0001,000,000 or requires payments exceeding $1,000,000 per annum.
7.12. 7.14 The Parent Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Parent Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased, in the aggregate, over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $20,000,0001,000,000.
7.13. 7.15 The Parent, the Borrower or any Subsidiary of its Subsidiaries shall (i) be the subject of any proceeding or investigation pertaining to the release by the ParentBorrower, the Borrower or any Subsidiary of its Subsidiaries or any other Person of any toxic or hazardous waste or substance into the environment, or (ii) violate any Environmental Law, which, in the case of an event described in clause (i) or clause (ii), has resulted in liability to the Parent, the Borrower or any Subsidiary of its Subsidiaries in an amount equal to $20,000,000 3,000,000 or more, which liability is not paid, bonded or otherwise discharged within 60 45 days or which is not stayed on appeal and being appropriately contested in good faith.
7.14. Any 7.16 Other than pursuant to any transaction permitted by this Agreement or consented to by the Required Lenders, any Loan Document shall fail to remain in full force or effect against or any Credit Party party thereto (except action shall be taken or shall be failed to be taken to discontinue or to assert the extent such Credit Party has been released from its obligations thereunder invalidity or unenforceability of, or which results in accordance with this Agreement the discontinuation or such other invalidity or unenforceability of, any Loan Document or such Loan Document has expired or terminated in accordance with its terms) or any Credit Party shall assert that its obligations thereunder are discontinued, invalid or unenforceable for any reason (other than those enumerated in the first parenthetical above); the Liens created by the Collateral Documents shall at any time not constitute a valid and perfected Lien on the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation, or possession is required herein or therein) in favor of the AgentAdministrative Agent under the Loan Documents, having or such Lien shall not have the priority contemplated by the Collateral Documents (except to the extent such Liens have been released in accordance with this Agreement or such other Loan Document)Documents.
7.15. An event (such event, an “Off-Balance Sheet Trigger Event”) shall occur which (i) permits the investors or purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance Sheet Liability having an aggregate outstanding principal amount (or similar outstanding liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet Trigger 7.17 A Healthcare Event shall not be remedied occur.
7.18 The Borrower shall fail, on or waived within before January 15, 2004, to repay in full, and extinguish all of its obligations related to, the later to occur of the tenth day after the occurrence thereof or the expiry date of any grace period related thereto Indebtedness under the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such investors shall require the amortization or liquidation of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or substitution of the Parent, any Subsidiary or any SPV as the servicer under the agreements evidencing such Off-Balance Sheet Liabilities; provided, however, that this Section 7.15 shall not apply on any date with respect to (a) any voluntary request by the Parent, any Subsidiary or any SPV for an above-described amortization or liquidation so long as the aforementioned investors or purchasers cannot independently require on such date such amortization or liquidation or (b) any scheduled amortization or liquidation at the stated maturity of the facility evidencing such Off-Balance Sheet LiabilitiesBorrower's 6% Convertible Subordinated Notes.
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Samples: Credit Agreement (Res Care Inc /Ky/)
