Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 4 contracts

Samples: Credit Agreement (Indonesia Fund Inc), Credit Agreement (Csam Income Fund), Credit Agreement (Latin America Investment Fund Inc)

Events of Default; Acceleration. ~~If any~~ Each of the following events ~~(each~~ shall constitute an ~~"EVENT OF DEFAULT") shall occur with respect to any Borrower:~~“Event of Default”: (a) ~~Such Borrower (i) shall default~~ the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the ~~payment of principal of~~ premises in an involuntary case or proceeding under any ~~Loan~~applicable bankruptcy, ~~interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (ii60) consecutive calendar days or a banking regulator shall ~~default in~~ have placed the ~~payment of any other amount due hereunder after the same becomes due and payable~~Bank into receivership; or (b) ~~Such Borrower shall default~~ the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the ~~performance of~~ United States or ~~compliance with~~ any ~~term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such ~~Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~law; or (c) ~~Such Borrower shall default in~~ the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Company (i) ~~of this Section 10.01 shall have occurred and be continuing~~ becomes insolvent or is unable to pay its debts as ~~a result of such claim having been asserted in respect of such Indebtedness; or~~ they mature, (gii) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ makes an assignment for the benefit of creditors, ~~or shall fail generally~~ (iii) admits in writing its inability to pay its debts as ~~such debts become due~~they mature, or ~~shall apply for or consent~~ (iv) ceases to be a bank holding company under the ~~appointment~~ Bank Holding Company Act of ~~or taking possession by a trustee~~1956, ~~receiver or liquidator~~ as amended; (~~or other similar official~~d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such ~~Borrower~~ failure for a period of fifteen (15) calendar days; (e) the failure of the Company to pay all or any ~~substantial~~ part of the ~~property~~ principal of any of the Subordinated Notes as and when the same will become due and payable; (f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its Subsidiaries); (g) the failure of the Company to perform any other covenant or agreement on the part of the Company contained in this Subordinated Note, and the continuation of such ~~Borrower~~ failure for a period of thirty (30) calendar days after the date on which notice specifying such failure, stating that such notice is a “Notice of Default” hereunder and demanding that the Company remedy the same, will have been given, in the manner set forth in Section 20, to the Company by the holders of not less than fifteen percent (15.0%) in principal amount of the then outstanding Subordinates Notes; or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Ifthe default by the Company under any bond, ~~within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws~~debenture, ~~as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency~~ note or other ~~similar law~~evidence of indebtedness for money borrowed by the Company having an aggregate principal amount outstanding of at least $5,000,000, whether such ~~case shall have been consented to~~ indebtedness now exists or ~~shall not have been dismissed~~ is created or ~~all orders or proceedings thereunder affecting~~ incurred in the ~~operations or the business of such Borrower stayed~~future, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or which default (i) ~~A final judgment which~~constitutes a failure to pay any portion of the principal of such indebtedness when due and payable after the expiration of any applicable grace period or (ii) results in such indebtedness becoming due or being declared due and payable prior to the date on which it otherwise would have become due and payable without, ~~together with other outstanding final judgments against such Borrower, exceeds an amount~~ in the ~~aggregate equal to five percent~~ case of clause (i), such indebtedness having been discharged or, in the case of clause (ii), without such indebtedness having been discharged or such acceleration having been rescinded or annulled. If an Event of Default described in Section 5(a), Section 5(b) or Section 5(f) occurs, then the principal amount of all of the outstanding Subordinated Notes, and accrued and unpaid interest, if any, on all outstanding Subordinated Notes will become and be immediately due and payable without any declaration or other act on the part of any Noteholder, and the Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding any other provision in this Section 5%, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a), Section 5(b) or Section 5(f), no Noteholder may accelerate the Stated Maturity of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower~~ the Subordinated Notes and ifmake the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within thirty (30) ~~days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30)~~ calendar days after the ~~expiration~~ receipt of written notice from any ~~such stay~~Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 13 below), such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a written notice of ~~intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess~~ Event of ~~$500,000 shall be filed under Title IV of ERISA by~~ Default, unless such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall ~~then be continuing with respect to~~ have been cured or waived before the giving of such ~~defaulting Borrower, (i) in~~ notice as certified by the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed Company in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 2 contracts

Samples: Subordinated Note Purchase Agreement (Franklin Financial Services Corp /Pa/), Subordinated Note Purchase Agreement (Franklin Financial Services Corp /Pa/)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur and be continuing for any reason whatsoever (and whether it shall be voluntary or involuntary or occur or be effected by operation of law or otherwise): (A) the Company defaults in the payment or prepayment when due of any principal of, or prepayment charge on, any Note, (B) the Company defaults for at least five business days in the payment when due of any interest on any Note, (C) the Company defaults in the observance of any agreement contained in Sections 5.15, 5.16, 5.17, 5.18, 5.22, 5.25, 5.27, 5.30, and 5.31. (D) the Company defaults in the observance of any other agreement or covenant in this Agreement and shall not have remedied the default within 30 days after written demand to remedy the same has been given to the Company by the holder of any Note, (E) the Company, any Guarantor or any Subsidiary shall not pay (or otherwise satisfy on terms consistent with the terms of this Agreement) any other Debt in an aggregated principal amount exceeding $500,000 when due, or any condition shall exist permitting other Debt of the Company, any Guarantor or any Subsidiary in an aggregate principal amount exceeding $500,000 to become or be declared due prior to its stated maturity, except, however, a condition in respect of a Guarantee of the Company, any Guarantor or any Subsidiary if the Company, such Guarantor or such Subsidiary shall duly perform its obligations under such Guarantee, (F) the Company, any Guarantor or any Subsidiary shall (1) be generally not paying its debts as they become due, (2) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (3) make any assignment for the benefit of its creditors, (4) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property, (5) be adjudicated insolvent or be liquidated, or (6) take corporate action for the purpose of any of the foregoing, (G) a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company, any Guarantor or any Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any ~~Borrower:~~substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise, to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, any Guarantor or any Subsidiary, or if any petition for any such relief shall be filed against the Company, any Guarantor or any Subsidiary and such petition shall not be dismissed within 60 days, (aH) ~~Such Borrower (i)~~ final judgment shall ~~default in~~ be rendered against the Company, any Guarantor or any Subsidiary for the payment of ~~principal~~ money in excess of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01$500,000, and such ~~default~~ judgment shall not ~~have been remedied~~ be discharged or execution thereon stayed pending appeal, within ~~five (5) Banking Days~~ 30 days after ~~written notice thereof~~ entry thereof, or, in the event of such a stay, such judgment shall ~~have been given to~~ not be discharged within 30 days after such ~~Borrower by the Operations Agent; or~~stay expires, (dI) ~~Such Borrower shall default in the performance of, or compliance with,~~ any material ~~term contained~~ representation or warranty heretofore or hereafter made by or on behalf of the Company herein or in any certificate or other ~~written agreement with the Operations Agent~~ writing delivered under or ~~any Bank pertaining~~ pursuant to this Agreement or ~~such Borrower's Loans, and such default shall continue for more than~~ in connection with any provision hereof or related to the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto transactions contemplated hereby shall prove to have been false or incorrect or breached in any material respect ~~when~~ on the date as of which made; , or (fJ) ~~Except as otherwise provided in this Section 10.01~~any Guaranty shall cease, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in ~~connection~~ accordance with ~~a permitted merger or consolidation of such Borrower)~~ its terms, to be in full force and effect or shall ~~make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession~~ be declared by a ~~trustee~~court or governmental authority of competent jurisdiction to be void, ~~receiver~~ voidable or ~~liquidator (or other similar official) of such Borrower or~~ unenforceable against any ~~substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~Guarantor, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations Guarantor or the ~~business of such Borrower stayed, or if the stay of~~ Company asserts any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the ~~property of such Borrower such appointment shall not have been vacated; or~~foregoing in writing or before any court or governmental authority, (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in~~ upon the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default ~~specified~~ described in ~~paragraphs~~ subsection (gF) ~~and~~ or (hG) ~~above~~with respect to the Company (other than such an Event of Default described in subsection (F)(1) or described in subsection (F)(6) by virtue of the reference in such clause (6) to such clause (1)), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and~~ unpaid principal amount of the ~~principal of and~~ Notes, together with the accrued interest on thereon and, to the ~~Loans~~ extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, shall automatically become immediately due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Company, ~~and/or~~ or (ii) upon occurrence of any other Event of Default, the holder or holders of at least 66-2/3% of the unpaid principal amount of the Notes at the time outstanding (subject to the last paragraph of Section 9) may, by written notice to the Company, declare all of the Notes to be, and the same shall forthwith become due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, provided that, during the existence of an Event of Default described in Subsection (A) or (B) ~~terminate~~ with respect to any Note, the ~~Commitments as~~ holder of such Note may, by written notice to the Company, declare such ~~defaulting Borrower~~Note to be, ~~whereupon~~ and the ~~Commitments~~ same shall forthwith become, due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the ~~Banks to make Committed Credit Loans hereunder to~~ prepayment charges that would be payable if the Company were prepaying such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Note at the time ~~of such termination~~pursuant to Section 4.

Appears in 2 contracts

Samples: Loan Agreement (Del Laboratories Inc), Loan Agreement (Del Laboratories Inc)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following events ~~(each an "EVENT OF DEFAULT")~~ of default shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) ~~Such Borrower (i) shall~~ failure by the Company to pay when due any amount required to be paid under this Participation Agreement or the Company Note, which failure causes a default in the payment when due of ~~principal~~ the interest on any of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the ~~same becomes due~~ Bonds and ~~payable, whether at maturity or by acceleration or otherwise, or~~ continuance of such default for five (ii5) ~~shall default in the payment of any other amount due hereunder after the same becomes due and payable~~days; or (b) ~~Such Borrower shall~~ failure by the Company to pay when due any amount required to be paid under this Participation Agreement or the Company Note, which failure causes a default in the ~~performance~~ payment when due of ~~or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~the principal of, or ~~such Borrower shall default in~~ premium, if any, on any of the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~Bonds; or (c) ~~Such Borrower shall~~ failure by the Company to pay when due any amount required to be paid under Section 4.11, which failure causes a default in the ~~performance~~ payment when due of ~~or compliance with~~ any ~~term contained herein other than those expressly referred~~ amount payable pursuant to ~~in this~~ Section ~~10.01,~~ 2.05 of the Indenture and continuance of such default ~~shall not have been remedied within~~ for five (5) ~~Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~days; or (d) ~~Such Borrower shall default~~ failure on the part of the Company to duly observe or perform any other of the covenants or agreements on the part of the Company contained in this Participation Agreement (other than failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.08, 4.09 or 4.10) or in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue Company Note for ~~more than the~~ a period of ~~grace~~ninety (90) days after the date on which written notice of such failure, ~~if any~~requiring the Company to remedy the same, ~~specified therein and~~ shall ~~not~~ have been ~~waived pursuant thereto~~given to the Company by the Authority or the Trustee; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove an Act of Bankruptcy relating to ~~have been false or incorrect in any material respect when made~~the Company; or (f) ~~Except~~ the occurrence and continuance of an "event of default" as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or defined in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company ~~Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~Indenture; then, and in any such event, ~~and at any time thereafter~~the Trustee, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written ~~or telephonic (confirmed in writing)~~ request of the ~~Majority Banks~~ owners of at least twenty-five percent (25%) in aggregate principal amount of the Bonds then outstanding shall, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Company and provided that the default has not theretofore been cured, declare the ~~principal of and accrued interest in respect of such defaulting Borrower's Loans~~ Company Note to be ~~forthwith~~ due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, ~~whereupon~~ anything contained in this Participation Agreement or in the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate Company Note to the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.contrary

Appears in 2 contracts

Samples: Indenture of Trust (Marketspan Corp), Participation Agreement (Long Island Lighting Co)

Events of Default; Acceleration. ~~If any~~ (a) Section 6.01 of the Base Indenture shall not apply to the Notes. Instead, each of the following events ~~(each~~ shall be an ~~"EVENT OF DEFAULT") shall occur~~ “Event of Default” with respect to ~~any Borrower~~the Notes: (a1) ~~Such Borrower (i) shall default~~ the Company defaults in the payment of ~~principal of~~ interest on any ~~Loan~~Note, ~~interest accrued thereon~~ or ~~fee due hereunder after~~ any Additional Amounts payable with respect thereto, when the same becomes due and payable, ~~whether at maturity or by acceleration or otherwise, or~~ and the default continues for a period of 30 days; (ii2) ~~shall default~~ the Company defaults in the payment of the principal or any ~~other amount due hereunder after~~ premium with respect to any Note, or any Additional Amounts payable with respect thereto, when the same becomes due and ~~payable; or~~payable at maturity, upon acceleration or redemption, or otherwise; (b3) ~~Such Borrower shall default~~ the Company defaults in the performance of or ~~compliance~~ breaches any other covenant, warranty or agreement of the Company in the Indenture with ~~any term contained in Sections 9.01(a)~~ respect to the Notes or ~~9.01(b~~under the Notes (other than a covenant or warranty included therein solely for the benefit of one or more series of Securities other than the Notes) and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of the Notes specifying such default ~~shall have continued for~~ or breach and requiring it to be remedied and stating that it is a “Notice of Default” under the Indenture; (4) there occurs with respect to any issue or issues of Indebtedness (including any Guarantee and any other series of debt securities) of the Company or any Significant Subsidiary having an outstanding principal amount of $225,000,000 or more ~~than three (3) Banking Days, or such Borrower shall default~~ in the ~~performance~~ aggregate for all such issues of all such persons, whether such Indebtedness exists on the date hereof or ~~compliance with any term contained in Sections 8.02(d)~~shall hereafter be created, ~~8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~ (ca) ~~Such Borrower shall~~ an event of default in that has caused the ~~performance of or compliance with any term contained herein other than those expressly referred~~ holder thereof to ~~in this Section 10.01,~~ declare such indebtedness to be due and payable prior to its stated maturity and such ~~default~~ indebtedness shall not have been ~~remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default~~ discharged in ~~the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement~~ full or such ~~Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and~~ acceleration shall not have been ~~waived pursuant thereto; or (e) Any representation, warranty certification~~ rescinded or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) annulled within 30 days of such ~~Borrower's Total Assets,~~ acceleration and/or (b) the failure to make a principal payment at the final (but not any interim) fixed maturity and such ~~default shall continue for more than the period of grace, if any, applicable thereto and~~ defaulted payment shall not have been made, waived ~~pursuant thereto and shall permit the holder~~ or extended within 30 days of such ~~Indebtedness~~ payment default; (5) the Company or any of its Significant Subsidiaries shall fail within 60 days to ~~declare such Indebtedness due and payable before its stated maturity~~pay, bond or otherwise discharge uninsured judgments or court orders for the payment of money in excess of $225,000,000 in the ~~performance of~~ aggregate, which are not stayed on appeal or ~~compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture~~ are not otherwise being appropriately contested in good faith; (6) an involuntary case or other ~~agreement relating thereto~~proceeding is commenced against the Company or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and ~~any~~ such ~~default shall continue~~ involuntary case or other proceeding remains undismissed and unstayed for ~~more than the~~ a period of ~~grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit~~ 60 days; or an order for relief is entered against the ~~holder~~ Company or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect; (7) the Company or any of ~~such Indebtedness to declare such Indebtedness due and payable before~~ its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Significant Subsidiaries (i) ~~of this Section 10.01 shall have occurred and be continuing as~~ commences a ~~result of such claim having been asserted~~ voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditorseffect, or ~~shall fail generally~~ consents to ~~pay its debts as~~ the entry of an order for relief in an involuntary case under any such ~~debts become due~~law, ~~or shall apply for or consent~~ (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, ~~receiver~~ sequestrator or ~~liquidator (or other~~ similar ~~official)~~ official of ~~such Borrower~~ the Company or any ~~substantial part~~ of its Significant Subsidiaries or of all or substantially all of the property or and assets of ~~such Borrower or shall commence a case or have an order for relief entered against it under~~ the ~~federal bankruptcy laws, as now or hereafter constituted,~~ Company or any of its Significant Subsidiaries or (iii) effects any general assignment for the benefit of creditors, in each case, other ~~applicable federal~~ than a proceeding initiated by or ~~state bankruptcy~~on behalf of the Company or a Subsidiary of the Company to effect the winding up, ~~insolvency~~ dissolution or other ~~similar law,~~ termination of existence of a Subsidiary of the Company which is permitted under Section 3.05 of the Base Indenture (an event of default specified in clause (6) or ~~if any action~~ (7) a “bankruptcy default”); (b) Section 6.02 of the Base Indenture shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing amended with respect to the Notes by replacing the first two paragraphs of such ~~defaulting Borrower, (i) in~~ section with the ~~case of any~~ following: “If an Event of ~~Default specified~~ Default, other than a bankruptcy default with respect to the Company (but not any Significant Subsidiary of the Company), occurs and is continuing under the Indenture with respect to the Notes, then, either the Trustee or the Holders of at least 25% in ~~paragraphs~~ aggregate principal amount of the Notes then outstanding, by written notice to the Company (g) and ~~(h) above~~to the Trustee if the notice is given by the Holders), ~~the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and~~ may declare the principal of and accrued interest on the ~~Loans shall automatically become~~ Notes to be immediately due and ~~payable without presentment~~payable. Upon a declaration of acceleration, ~~demand~~such principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest ~~in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall~~ on Notes then outstanding will become ~~forthwith~~ immediately due and payable without ~~presentment, demand, protest~~ any declaration or other ~~notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate~~ act on the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ part of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ Trustee or any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationHolder.”

Appears in 2 contracts

Samples: Sixth Supplemental Indenture (Flex Ltd.), Fifth Supplemental Indenture (Flex Ltd.)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower~~ Appia shall fail to pay any principal amount of the New Debenture or fees, charges, costs or expenses (iother than an Interest Default permitted by Section 2.5(a)) ~~shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes~~ due and ~~payable, whether at maturity~~ payable under the New Debenture or ~~by acceleration~~ any of the Financing Documents when such payment comes due in accordance with the terms of this Agreement and the other Financing Documents; or ~~otherwise, or (ii)~~ Appia shall ~~default in the payment of~~ fail to pay any other amount payable hereunder when due ~~hereunder after the same becomes due and payable~~(other than an Interest Default permitted by Section 2.5(a)); or (b) ~~Such Borrower shall default~~ any representation or warranty made by a Company or any other Obligor herein or in ~~the performance of~~ any other Financing Document or ~~compliance with any term~~ which is contained in ~~Sections 9.01(a)~~ any certificate, document, financial or ~~9.01(b) and~~ other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Financing Document shall prove, when taken as a whole, to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~date made; or (c) ~~Such Borrower~~ the failure by Appia or any other Obligor to punctually perform, observe, comply with or satisfy (i) any covenant, agreement or condition contained in Sections 7 or 8 of this Agreement, or (ii) any covenant, agreement or condition contained in any Financing Document, subject to any applicable cure period set forth therein; or (d) Appia or any Subsidiary shall be in default in the observance or performance of any other covenant contained in this Agreement or ~~compliance with~~ any ~~term contained herein~~ other Financing Document (other than ~~those expressly referred to~~ as provided in paragraphs (a) through (c) of this Section ~~10.01~~9.1), and such default (if remediable) shall ~~not have been remedied within five~~ continue unremedied for a period of twenty (520) ~~Banking Days~~ days after the earlier of (i) the date on which a Responsible Officer of such Company first learns of such default or (ii) the date on which written notice thereof shall have been given to such ~~Borrower~~ Company by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoPurchaser; or (e) ~~Any representation~~Appia or any Subsidiary shall fail to pay when due or shall fail to observe or perform any term, ~~warranty certification~~ covenant or ~~statement made~~ agreement evidencing or ~~deemed made by~~ securing any Indebtedness of such ~~Borrower~~ Company which, together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), which results in ~~this Agreement~~ the proper acceleration of such Indebtedness or in the proper declaration of an event of default under any ~~certificate, financial statement or other document delivered pursuant hereto shall prove~~ agreement relating to ~~have been false or incorrect in any material respect when made~~such Indebtedness; or (f) ~~Except as otherwise provided in this Section 10.01~~a Company or any Subsidiary, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, ; or (ii) shall ~~fail generally~~ admit in writing its inability to pay its debts as ~~such debts~~ they become due, or its inability to pay or perform under the Financing Documents; or (iii) shall ~~apply~~ file a voluntary petition in bankruptcy; or (iv) shall file any petition, answer, or document seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall seek or consent to or acquiesce in the appointment of ~~or taking possession by a~~ any trustee, ~~receiver~~ receiver, or liquidator ~~(or other similar official)~~ of such ~~Borrower~~ Company or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property ~~or assets~~ of such ~~Borrower~~ Company; or (vi) other than as permitted herein, shall ~~commence a case~~ cease operations of its business as its business has normally been conducted (which consists of advertising, marketing and sales within the mobile industry) or ~~have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~is currently proposed to be conducted, or ~~any other applicable federal~~ terminate substantially all of its employees; or ~~state bankruptcy, insolvency~~ (vii) such Company’s directors or ~~other similar law, or if~~ majority shareholders shall take any action ~~shall be taken to dissolve or liquidate such Borrower~~ initiating any of the foregoing actions described in clauses (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) through (vi); or (hg) ~~If, within sixty~~ either (60i) forty-five (45) days shall have expired after the commencement of an involuntary action against ~~such Borrower of~~ a ~~case under the federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal~~ Subsidiary seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or ~~state bankruptcy~~similar relief under any present or future statute, ~~insolvency~~ law or ~~other similar law~~regulation, without such ~~case shall have been consented to or shall not have been~~ action being dismissed or all orders or proceedings thereunder affecting the operations or the business of such ~~Borrower~~ Company or any Subsidiary being stayed, ; or ~~if the~~ (ii) a stay of any such order or ~~proceeding~~ proceedings shall thereafter be set ~~aside,~~ aside and the action setting it aside shall not be timely appealed; or ~~if within sixty~~ (60iii) such Company or any Subsidiary shall file any answer admitting or not contesting the material allegations of a petition filed against such Company or any Subsidiary in any such proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) twenty (20) days shall have expired after the ~~entry~~ appointment, without the consent or acquiescence of a ~~decree appointing a~~ Company or any Subsidiary, of any trustee, receiver or liquidator ~~(or other similar official)~~ of such ~~Borrower~~ Company or any Subsidiary or of all or any substantial part of the ~~property~~ properties of such ~~Borrower~~ Company or any Subsidiary without such appointment ~~shall not have been~~ being vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower Appia or any ~~member of the~~ Commonly Controlled ~~Group~~ Entity shall fail to pay when due an any amount ~~or amounts aggregating in excess of $500,000 which~~ that it ~~is obligated~~ shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA, unless (A) such liability is being contested in good faith by appropriate proceedings, such Company or such Commonly Controlled Entity, as the case may be, has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or (B) which would not have a Material Adverse Effect; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Plans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; ~~or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5~~or (i) ~~of ERISA, with respect to,~~ one or more ~~Multiemployer Plans which could cause such Borrower~~ final, nonappealable judgments or ~~one~~ decrees shall be entered against Appia or ~~more members~~ any of ~~the Controlled Group to incur a current payment obligation~~ its Subsidiaries involving individually monetary damages of Two Hundred Fifty and 00/100 Dollars ($250,000.00) (in excess of what is paid or covered by insurance) or in the aggregate, monetary damages of Two Hundred Fifty Thousand and 00/100 Dollars ($~~500,000~~250,000.00) (in excess of what is paid or covered by insurance) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or (j) if any of the Financing Documents or the Warrant (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Purchaser, or any action at law, suit or in equity or other legal proceeding be commenced by or on behalf of a Company or any of its officers of members of its Board of Directors and results in, or is reasonably likely to result in, a finding, order, decree or judgment which does or would cancel, revoke, curtail or rescind any of the Financing Documents or the Warrant, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents or the Warrant (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (k) ~~Such Borrower shall~~ any Lien created by any of the Security Documents shall, by reason of any breach by any Obligor thereto of any of its covenants or other obligations contained in such Security Documents, cease to be ~~an investment management company~~ enforceable and of the same effect and priority purported to be created thereby; or (l) a material portion of the property of a Company or any of its Subsidiaries is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds the amount of insurance proceeds readily available for such restoration or replacement; or (m) any default shall exist and remains unwaived, unforborn or uncured with respect to any of the Senior Debt or Replacement Senior Debt if, as a ~~Portfolio thereof~~result of such default, any holder of the Senior Debt or Replacement Senior Debt, is entitled and elects to cause any such Senior Debt or Replacement Senior Debt to become due prior to its stated date of maturity; or (n) ~~registered~~ any payment which a Company knew or should have known was be made in violation of any subordination agreement entered into between the Purchaser and another holder of Company Indebtedness or Company Subsidiary Indebtedness; or (i) any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (ii) Mandalay does not perform any obligation or covenant under the ~~Investment Company Act~~Mandalay Guaranty; (iii) any circumstance described in Sections 9.1(b), (f), (g), and (i) hereinabove with respect to (i.e., as and as-if applied to) Mandalay (provided that with respect to Mandalay, the applicable threshold under Section 9.1(i) shall be Five Hundred Thousand Dollars ($500,000)); or (iv) the liquidation, winding up, or ~~such Borrower's registration under the Investment Company Act, or that~~ termination of ~~any Borrower Agent~~ existence of ~~such Borrower, shall lapse or be suspended;~~ Mandalay. then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ the Purchaser may, by notice to the Companies, declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ New Debenture, and the other Financing Documents to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Companies; provided, however, that in the event of any Event of Default specified in Section 9.1(f), Section 9.1(g) or Section 9.1(h), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ amounts shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPurchaser.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Mandalay Digital Group, Inc.), Merger Agreement (Mandalay Digital Group, Inc.)

Events of Default; Acceleration. If any of the following events (each an ~~"EVENT OF DEFAULT"~~“Event of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ The Borrower ~~(i)~~ shall default in the payment of principal of or interest on the Notes or any ~~Loan, interest accrued thereon or~~ other fee due hereunder ~~after~~ when the same becomes due and payable, whether at maturity or at a date fixed for the payment of any installment or prepayment thereof or by declaration, acceleration or otherwise, or and such default shall continue for a period of three (ii3) ~~shall default in the payment of any other amount due hereunder after the same becomes due and payable~~Banking Days (a “Payment Default”); or (b) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a)~~ Section 5 (other than subsection 5.10(a)), Section 6 or ~~9.01(b) and~~ subsections 7.1 or 7.2 and, to the extent any default is susceptible of remedy or cure, the Borrower has failed to remedy or cure any such default ~~shall have continued for more than three~~ within ten (310) ~~Banking Days, or such~~ days after the occurrence thereof; or (c) The Borrower shall default in the performance of or compliance with any term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ subsection 5.10(a) or ~~9.04~~subsection 7.3 and the Borrower has failed to remedy or cure any such default within five (5) Banking Days; or (cd) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this Section ~~10.01,~~ 8 and such default shall not have been remedied within ~~five~~ thirty (530) ~~Banking Days~~ days after ~~written notice~~ the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall ~~have been given to such Borrower by~~ be deemed an Event of Default as of the ~~Operations Agent~~date of its occurrence; or (de) ~~Such~~ The Borrower or any Subsidiary which is a party to any of the Loan Documents shall default in the performance ~~of,~~ of or compliance ~~with,~~ with any material term contained in the Loan Documents (other than this Revolving Credit Loan Agreement) or in the performance of or compliance with any material term contained in any other written agreement with the ~~Operations~~ Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans~~and/or the Lenders, executed in connection therewith and such default shall ~~continue for more than the period of grace, if any, specified therein and shall~~ not have been ~~waived pursuant thereto~~remedied within thirty (30) days after the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall be deemed an Event of Default as of the date of its occurrence; or (ef) Any ~~representation,~~ representation or warranty ~~certification or statement made or deemed~~ made by ~~such~~ the Borrower ~~in this Agreement~~ or any Subsidiary herein or in any ~~certificate, financial statement~~ other Loan Document or ~~other document delivered pursuant hereto~~ shall prove to have been false or incorrect in any material respect when made; or (fg) ~~Except as otherwise provided in this Section 10.01, such~~ The Borrower or any Subsidiary shall default in any payment due on any Indebtedness ~~for~~ in respect of borrowed money where the aggregate principal balance thereof together with interest thereon exceeds $500,000 or any lesser aggregate principal balance where such failure to pay is reasonably likely to have a Material Adverse Effect (other than to the Lenders, as to which subsection 8.1(a) shall apply), any Capital Lease or the deferred purchase price of ~~property~~property with a principal balance together with interest thereon, lease balance or purchase price (as the ~~aggregate outstanding principal amount of which is~~ case may be) in excess of ~~five percent (5%)~~ $500,000 outstanding as of the date of such ~~Borrower's Total Assets~~default, and such default shall continue for more than the period of grace, if any, applicable ~~thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity~~thereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant ~~thereto and shall permit the holder of~~ thereto, (except such ~~Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation~~ defaults which are being contested in good faith ~~by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves~~and, if ~~any~~applicable, ~~with respect thereto~~ as ~~are~~ to which adequate reserves have been established on the Borrower’s books to the extent required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessGAAP); or (gh) ~~Such~~ The Borrower or any Subsidiary shall cease to be solvent (as represented in the Solvency Certificate) or shall discontinue its business (~~other than in connection with a~~ except as otherwise permitted ~~merger or consolidation of such Borrower~~hereby) or the Borrower or any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Borrower or such ~~Borrower~~ Subsidiary or any substantial part of the property of the Borrower or ~~assets of~~ such ~~Borrower~~ Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action ~~shall be taken~~ to dissolve or liquidate the Borrower or such ~~Borrower~~ Subsidiary (~~other than in connection with a~~ except as otherwise permitted ~~merger or consolidation of such Borrower~~hereby); or (hi) ~~If, within sixty (60) days after~~ An involuntary proceeding shall be commenced against the ~~commencement against such~~ Borrower ~~of a case~~ or any Subsidiary under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, ~~such case shall have been consented to~~ or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree shall be entered appointing a trustee, receiver or liquidator (or other similar official) of ~~such~~ the Borrower or any Subsidiary or any substantial part of the property of the Borrower or such ~~Borrower such appointment shall not have been vacated~~Subsidiary; or (ij) A final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower, exceeds an amount in~~ the ~~aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ Borrower and its Subsidiaries shall be rendered against ~~such~~ the Borrower or any Subsidiary which is reasonably likely to have a Material Adverse Effect and if, within ~~thirty (30)~~ the earlier of 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty (30)~~ 60 days after the expiration of any such stay, such judgment shall not have been discharged~~; or (j) Such~~ , or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Borrower or any ~~member of the Controlled Group~~ Subsidiary shall ~~fail to pay when due an amount or amounts aggregating~~ have been seized in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000satisfaction thereof; or (k) ~~Such~~ If the Borrower ~~shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act~~is enjoined, restrained, or in any material way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business and such ~~Borrower's registration under~~ order is not stayed or revoked within five (5) days; or (l) This Agreement, the ~~Investment Company Act~~Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be cancelled, terminated, revoked, rescinded or declared invalid or unenforceable in whole or in any material respect, otherwise than pursuant to its terms by virtue of the expiration of its term or otherwise than in accordance with the express prior written agreement, consent or approval of the Required Lenders or the Lenders, as the case may be, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind this Agreement, the Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be commenced by or on behalf of the Borrower or any other Person bound thereby or party thereto or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that any one or more of the Loan Documents or any one or more of the material obligations of any ~~Borrower Agent~~ Person or Persons under any one or more of ~~such Borrower~~the Loan Documents are illegal, ~~shall lapse~~ invalid or ~~be suspended~~unenforceable in accordance with the terms thereof; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the ~~Operations~~ Agent ~~may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall,~~ may by written notice to ~~such defaulting Borrower~~ the Borrower, (Ai) declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of ~~such Loans~~ the Notes shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, and/or (Bii) terminate the ~~Commitments as to such defaulting Borrower~~Maximum Line Commitment, whereupon the ~~Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ Maximum Line Commitment shall forthwith terminate without any other notice of any ~~kind and~~ kind; provided that, in the ~~percentages~~ case of an Event of Default arising by reason of the ~~Commitment Fee and other fees and expenses otherwise payable by~~ occurrence of any event described in subsections 8.1(h) or 8.1(i), both such ~~defaulting Borrower hereunder accruing from and after the date of termination~~ actions shall be ~~reallocated among~~ deemed to have been automatically taken by the ~~remaining Borrowers PRO RATA on the basis~~ Agent and all obligations of the ~~percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~Borrower to the Lenders shall forthwith automatically become due and payable without presentment, ~~as in effect at~~ demand, protest or notice of any kind, all of which are hereby expressly waived by the ~~time~~ Borrower. Without limiting any provision of ~~such termination~~this Agreement or any Loan Documents, a Default or Event of Default hereunder shall also constitute a Default or Event of Default under the Loan Documents.

Appears in 2 contracts

Samples: Revolving Credit Loan Agreement, Revolving Credit Loan Agreement (Harvard Bioscience Inc)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ Debtor shall ~~default in the payment of~~ fail to pay any principal of interest on this Promissory Note or any ~~Loan~~other sum due under this Promissory Note, ~~interest accrued thereon~~ any Transaction Document, or ~~fee due hereunder after~~ any other note or other agreement between Debtor and RACC when the same becomes due and ~~payable~~such failure shall continue for ten (10) days beyond the due date of such payment; (b) Debtor shall fail to perform any term, ~~whether~~ covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice; (c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at ~~maturity~~ the time made or ~~by acceleration~~ deemed to have been made; (d) Debtor shall be in default under any agreement or ~~otherwise~~agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates, or (ii) ~~shall default in the payment of~~ any other ~~amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default~~ Indebtedness in ~~the performance~~ excess of ~~or compliance with any term contained~~ $100,000.00 in ~~Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~aggregate principal amount, or shall fail to pay any such ~~Borrower shall default in the performance of~~ Indebtedness when due or ~~compliance with~~ within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace~~, if any, specified therein and shall not have been waived pursuant thereto; or~~; (e) ~~Any representation, warranty certification or statement made or deemed made by such Borrower~~ any of the Transaction Documents shall cease to be in ~~this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or~~full force and effect; (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Debtor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall ~~fail generally~~ commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (g) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature; (h) ~~If, within sixty~~ there shall remain undischarged for more than thirty (6030) days ~~after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or~~ any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment ~~which~~or execution action against Debtor that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower~~Debtor, respectively, exceeds ~~an amount~~ $100,000.00 in the ~~aggregate equal to five percent~~ aggregate; (5%i) the prospect of ~~such Borrower's Total Assets (exclusive~~ payment or performance by Debtor or realization on the Collateral, in the reasonable opinion of ~~amounts covered by available insurance) shall be rendered against such Borrower and if~~RACC, ~~within thirty (30) days after entry thereof, such judgment shall not have been discharged~~ is or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or~~becomes significantly impaired; (j) ~~Such Borrower or~~ any ~~member~~ of the ~~Controlled Group~~ Aircraft shall ~~fail~~ have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to ~~pay when due~~ such an ~~amount or amounts aggregating in excess of $500,000 which it~~ extent that the repair thereof is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA impracticable (as determined solely by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000RACC); or (k) ~~Such Borrower shall cease to be an investment management company~~ Debtor (i) sells, transfers or ~~a Portfolio thereof~~disposes of all or substantially all of its respective stock, assets or property, (ii) ~~registered under~~ becomes the ~~Investment Company Act~~subject of, or ~~such Borrower's registration under the Investment Company Act~~engages in, a leveraged buy-out, or ~~that of any Borrower Agent of such Borrower~~(iii) terminates its existence by merger, ~~shall lapse~~ reorganization or ~~be suspended; then~~consolidation. THEN, ~~and in any such event, and~~ or at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clauses (f) or (g~~) and (h) above~~), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated~~ entire unpaid principal amount of this Promissory Note and ~~the principal of and accrued interest on the Loans~~ all other amounts payable hereunder, shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~Debtor; and (2) In the case of any Event of Default other than under clauses (f) or (g), ~~and/or (B) terminate~~ RACC may, by written notice to Debtor, declare the ~~Commitments as~~ unpaid principal amount of this Promissory Note and all other amounts payable hereunder, to ~~such defaulting Borrower~~be forthwith due and payable, ~~whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate~~ without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by Debtor. In addition to and without in any way limiting the ~~percentages~~ foregoing, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the ~~Commitment Fee~~ Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 2 contracts

Samples: Senior Note (Great Lakes Aviation LTD), Deferral Note (Great Lakes Aviation LTD)

Events of Default; Acceleration. ~~If any~~ Each of the following ~~events (each~~ shall constitute an ~~"EVENT OF DEFAULT") shall occur with respect to any Borrower~~Event of Default under this Agreement: (a) ~~Such~~ the Borrower shall fail to pay when due and payable any principal of the Loans when the same becomes due; (b) the Borrower shall fail to pay interest on the Loans or any other sum due under any of the Loan Documents within two (2) Business Days after the date on which the same shall have first become due and payable; (c) the Borrower shall fail to perform any term, covenant or agreement contained in (sections) 7.1(c)(i) and 7.2; (d) the Borrower shall fail to perform any other term, covenant or agreement contained in any Loan Document within fourteen (14) days after the Bank has given written notice of such failure to the Borrower; (e) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (f) the Borrower, or any Affiliate of Borrower, shall be in default (after any applicable period of grace or cure period) under any agreement evidencing Indebtedness owing to the Bank, or shall fail to pay such Indebtedness when due (after any applicable period of grace or cure period); (g) any of the Loan Documents shall cease to be in full force and effect; (h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower shall be unable to pay its debts as ~~such debts become due~~they mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against the Borrower that, together with other outstanding claims and execution actions against the Borrower exceeds $200,000 in the aggregate; (k) the commencement of a foreclosure proceeding affecting any Approved Geothermal Project; (l) the Borrower, or any Affiliate of Borrower, shall be in default (after any applicable period of grace or cure period) under any agreement evidencing Indebtedness owing to BLITA, or to any Affiliate of BLITA other than the Bank, or shall ~~apply for~~ fail to pay such Indebtedness when due (after any applicable period of grace or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrowercure period); or (hm) Ifa change in the financial condition or affairs of Borrower which in the reasonable opinion of the Bank materially reduces Borrower's ability to pay all the Obligations. If any of the Events of Default shall occur and be continuing, ~~within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted~~then, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (ia) in In the case of any Event of Default ~~specified in paragraphs (g) and~~ under clause (h) ~~above~~or (i), the ~~Commitments as to such defaulting Borrower~~ Commitment shall ~~thereupon~~ automatically ~~be terminated~~ terminate, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereon, and all other amounts payable thereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower; (b) In the case of any Event of Default under clause (a) or (b), the Bank may, by written notice to the Borrower, ~~and/or (B)~~ terminate the ~~Commitments as to such defaulting Borrower, whereupon~~ Commitment and/or declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loans, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrower; and (c) In the case of any Event of Default other than (a), (b), (h) or (i), the Bank may, by two (2) Business Days' prior written notice to the Borrower, and where such Event of Default has not been cured during such period, terminate the ~~percentages~~ Commitment and/or declare the unpaid principal amount of the ~~Commitment Fee~~ Loans, all interest accrued and unpaid thereon, and all other ~~fees~~ amounts payable hereunder and ~~expenses otherwise payable~~ under the other Loan Documents to be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by ~~such defaulting Borrower hereunder accruing from~~ the Borrower. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~after the date of termination~~ each and every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 2 contracts

Samples: Bridge Loan Agreement (Ormat Technologies, Inc.), Bridge Loan Agreement (Ormat Technologies, Inc.)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Any Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal or interest of any ~~Loan, interest accrued thereon~~ Loan when due in accordance with the terms of this Agreement or ~~fee due hereunder after~~ the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii)~~ Borrowers shall ~~default in the payment of~~ fail to pay any other amount ~~due~~ payable hereunder within five (5) days after ~~the same~~ any such other amount becomes due in accordance with the terms of this Agreement and ~~payable~~the other Loan Documents; or (b) ~~Such~~ Any representation or warranty made by any Borrower ~~shall default~~ to the Lender in ~~the performance of~~ this Agreement or ~~compliance with~~ in any ~~term~~ other Loan Document or which is contained in ~~Sections 9.01(a)~~ any certificate, document or ~~9.01(b) and~~ financial or other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Loan Document shall prove to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of~~ date made or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~deemed made; or (c) ~~Such~~ Any Borrower ~~shall default~~ fails to observe or perform any covenant, condition, or agreement contained in ~~the performance~~ any of subsection 2.3, 5.4, 5.5, 5.7. 5.9. 5.10 or ~~compliance with~~ 5.11 or Section 6 of this Agreement; or (d) Any Borrower fails to observe or perform any ~~term~~ covenant, condition, or agreement contained ~~herein~~ in this Agreement or any other Loan Document (other than ~~those expressly referred to~~ as provided in ~~this Section 10.01~~subsection 8.1(a), 8.1(b) or 8.1(c)) and such failure continues for thirty (30) days after the earlier of (i) the date on which any officer of any Borrower first learns of such default ~~shall not have been remedied within five~~ or (5ii) ~~Banking Days after~~ the date on which written notice thereof shall have been given to ~~such~~ any Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orLender; (e) Any ~~representation~~Borrower commences any case, ~~warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate~~proceeding, ~~financial statement~~ or other ~~document delivered pursuant hereto shall prove~~ action (i) under any existing or future Law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have ~~been false~~ an order for relief entered with respect to it, or ~~incorrect in~~ seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator, or other similar official for it or for all or any ~~material respect when made; or~~substantial part of its assets, or any Borrower makes a general assignment for the benefit of its creditors; (f) ~~Except as otherwise provided in this Section 10.01~~Any proceeding or case shall be commenced against any Borrower, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ without the application or ~~the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%)~~ consent of such Borrower~~'s Total Assets~~, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of assets of such Borrower, or (iii) similar relief in respect of it, under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the relief of debtors, and such ~~default~~ proceeding or case shall continue un-dismissed, or un-stayed and in effect, for ~~more than the~~ a period of ~~grace~~sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code, ~~if any~~as amended from time to time, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ against such Borrower or action under the ~~holder~~ Laws of the jurisdiction of incorporation or organization of such ~~Indebtedness~~ Borrower similar to ~~declare such Indebtedness due and payable before its stated maturity, or in~~ any of the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower foregoing shall be ~~contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any,~~ taken with respect ~~thereto as are required by GAAP and deemed appropriate by~~ to such Borrower and ~~its independent public accountants, PROVIDED, that no Event~~ shall continue un-stayed and in effect for a period of ~~Default pursuant to paragraphs~~ sixty (b60) ~~or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~days; or (g) ~~Such~~ One or more judgments or decrees shall be entered against any Borrower ~~shall discontinue its business~~ involving a liability of One Hundred Thousand and 00/100 Dollars (~~other than in connection with a permitted merger or consolidation of such Borrower~~$100,000.00) or ~~shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent~~ more (to the ~~appointment of or taking possession~~ extent not covered by ~~a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part~~ independent third-party insurance as to which the insurer has been notified of the ~~property~~ potential claim and does not dispute coverage) and all such judgments or ~~assets of such Borrower~~ decrees shall not have been vacated, discharged, stayed or ~~shall commence a case or have an order for relief entered against it under~~ bonded pending appeal within ten (10) days from the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)entry thereof; or (h) IfIf any of the Loan Documents (including this Agreement) (or any provision contained therein) shall be cancelled, ~~within sixty (60) days after~~ terminated, revoked, curtailed or rescinded otherwise than in accordance with the ~~commencement against such Borrower~~ terms thereof or with the express prior written agreement, consent or approval of ~~a case under~~ the ~~federal bankruptcy laws, as now or hereafter constituted~~Lender, or any ~~other applicable federal~~ action at law, suit or ~~state bankruptcy, insolvency~~ in equity or other ~~similar law~~legal proceeding to cancel, ~~such case~~ revoke, curtail or rescind any of the Loan Documents shall ~~have been consented to~~ be commenced by or ~~shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay~~ on behalf of any ~~such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such~~ Borrower or any ~~substantial part~~ of its officers, director or stockholders of any Borrower, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the ~~property of such Borrower such appointment shall not have been vacated~~Loan Documents (including this Agreement) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged[Reserved]; or (j) ~~Such Borrower or any member~~ a material portion of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary property of any ~~such Plan~~ Borrower is damaged by fire or ~~Plans against such Borrower~~ other casualty, or ~~any member of~~ otherwise lost or stolen, the ~~Controlled Group to enforce Sections 515~~ restoration or ~~4219(c)(5) of ERISA; or a condition shall exist by reason~~ replacement cost of which property exceeds, in the ~~PBGC~~ aggregate, the amount of insurance proceeds readily available for such restoration or replacement, and such loss would ~~be entitled to obtain~~ have a ~~decree adjudicating that any~~ material adverse effect upon such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower; or (k) ~~Such Borrower~~ any Event of Default (as defined in the Senior Loan and Security Agreement) shall ~~cease to be an investment management company (~~exist and remains un-waived or ~~a Portfolio thereof) registered~~ uncured under the ~~Investment Company Act~~Senior Loan and Security Agreement if, or as a result of such ~~Borrower's registration under~~ Event of Default (as defined in the ~~Investment Company Act~~Senior Loan and Security Agreement), ~~or that~~ the Senior Lender is entitled to cause the Senior Credit Facility to become due prior to its stated date of maturity; or (l) the occurrence of any ~~Borrower Agent of such Borrower, shall lapse or be suspended~~Material Adverse Change; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the ~~Commitments as~~ Lender may, by notice in writing to ~~such defaulting Borrower~~ the Borrowers, declare all of the Obligations to be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Borrowers; provided, ~~and/or (B~~however, that in the event of any Event of Default specified in subsection 8.1(e) ~~terminate the Commitments as to such defaulting Borrower~~or 8.1(f), ~~whereupon the Commitments~~ all of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ Obligations shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 2 contracts

Samples: Bridge Loan Agreement (Minim, Inc.), Bridge Loan Agreement (Hitchcock Jeremy P.)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default" or a "Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Demand, in the Bank's sole discretion; or (b) The Borrower ~~(i)~~ shall default in the payment of the principal ~~of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~of, or any prepayments or interest on the Note, and such default shall continue for five (ii5) ~~shall~~ days or default is made in respect of the payment of any other fee or amount due hereunder or thereunder, whether at maturity, by acceleration or at a date fixed for the payment thereof or otherwise, and such default shall continue for five (5) days after ~~the same becomes due and payable~~written notice of default from Bank to Borrower; or (bc) ~~Such~~ The Borrower shall default in the performance of or compliance with ~~any term contained in~~ the terms and provisions of Sections ~~9.01(a)~~ 4, 5 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent6 hereof; or (d) ~~Such~~ The Borrower shall ~~default in the performance of, or compliance with, any material term contained in~~ fail to perform any other ~~written agreement with the Operations Agent~~ term or ~~any Bank pertaining to this Agreement or such Borrower's Loans~~covenant hereof, and such default ~~shall continue for more~~ (other than a monetary default referred to in paragraph (a) hereof) is not rectified and cured within fifteen (15) days after notice of default or breach by the ~~period of grace, if any, specified therein and shall not have been waived pursuant thereto~~Bank to the Borrower; or (e) Any ~~representation,~~ material representation or warranty ~~certification or statement made or deemed~~ made by ~~such~~ the Borrower ~~in this Agreement~~ or any other party in any ~~certificate, financial statement or other document delivered pursuant hereto~~ Loan Document shall prove to have been false or incorrect in any material respect when made; or (f) ~~Except as otherwise provided in this Section 10.01, such~~ The Borrower or any Guarantor shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such any Indebtedness to ~~declare such Indebtedness due and payable before its stated maturity~~a third party, including the Bank or in the performance of or compliance with any term of any ~~evidence of~~ agreement or document relating to such Indebtedness ~~or of any mortgage, indenture or other agreement relating thereto,~~ and ~~any~~ such default ~~shall continue for more than the period of grace, if any, specified therein and shall~~ or breach is not ~~have been~~ waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such third party, including the Bank or cured by Borrower ~~and its independent public accountants~~or such Guarantor within any applicable cure period or otherwise prior to declaration of default hereunder by Bank, ~~PROVIDED, that no Event~~ including without limitation failure to pay amounts due under or comply with the terms of ~~Default pursuant to paragraphs (b)~~ or ~~(i)~~ the occurrences of ~~this Section 10.01 shall have occurred and be continuing as~~ a ~~result~~ default or event of ~~such claim having been asserted~~ default under any of the loan documents described in ~~respect of such Indebtedness~~SCHEDULE 1.1 attached hereto; or (g) ~~Such~~ The Borrower or any Guarantor shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of ~~such~~ the Borrower or any Guarantor or any substantial part of ~~the property or assets of such Borrower~~ its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Guarantor shall take any action ~~shall be taken~~ looking to ~~dissolve~~ the dissolution or ~~liquidate such~~ liquidation of the Borrower ~~(other than in connection with a permitted merger~~ or ~~consolidation of such Borrower); or~~any Guarantor; (h) IfA decree or order is entered appointing any such trustee, ~~within sixty (60) days after~~ custodian, liquidator or receiver or adjudicating the ~~commencement against~~ Borrower or any Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower ~~of a~~ or any Guarantor in an involuntary case under ~~the~~ federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or; (i) A There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment ~~which~~not covered by insurance against the Borrower or any Guarantor that, ~~together~~ with other outstanding final judgments not covered by insurance, undischarged, against the Borrower or such ~~Borrower~~Guarantor, exceeds ~~an amount~~ in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or$100,000; (j) ~~Such Borrower~~ Any of the Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement consent or approval of the Bank, or any ~~member~~ action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the ~~Controlled Group~~ Loan Documents shall ~~fail to pay when due an amount~~ be commenced by or ~~amounts aggregating in excess~~ on behalf of ~~$500,000 which it is obligated to pay~~ the Borrower, any Guarantor, or any of their respective shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Groupeffect that, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more ~~Multiemployer Plans which could cause such Borrower or one or more members~~ of the ~~Controlled Group to incur a current payment obligation~~ Loan Documents is illegal, invalid or unenforceable in ~~excess of $500,000~~accordance with the terms thereof; or (k) ~~Such~~ The Borrower or any Guarantor shall ~~cease to~~ be ~~an investment management company (~~enjoined, restrained or ~~a Portfolio thereof) registered under~~ in any way prevented by the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that~~ order of any ~~Borrower Agent~~ court or any administrative or regulatory agency from conducting any material part of its business and such ~~Borrower,~~ order shall ~~lapse or be suspended~~continue in effect for more than thirty (30) days; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuing, either or both of the following actions may be taken, in addition to and not in limitation of any additional remedies as may be set forth herein or in any related Loan Documents or under applicable law: (a) the ~~Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A)~~ Bank may declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ the Note to be forthwith due and payable, whereupon the ~~principal of~~ principal, premium, if any, and accrued interest in respect of ~~such Loans~~ the Note shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, ~~and/or~~ together with all other amounts due hereunder or thereunder; (Bb) ~~terminate~~ the ~~Commitments as~~ Bank may proceed to ~~such defaulting~~ protect, enforce and exercise its rights by an action at law, suit in equity or other appropriate proceeding, including without limitation a right of set-off against any and all deposits, accounts, certificate of deposit balances, claims or other sums at any time credited by or due from the Bank to the Borrower. Notwithstanding anything to the contrary herein or in any Loan Document, ~~whereupon~~ the ~~Commitments of the Banks~~ Bank shall not be obligated to make ~~Committed Credit Loans hereunder~~ advances to Borrower under Section 2 hereof following any monetary default or during any cure or grace period following such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationa default.

Appears in 1 contract

Samples: Loan Agreement (Brunswick Technologies Inc)

Events of Default; Acceleration. If ~~any~~ one or more of the following ~~events~~ occurs (each an ~~"EVENT OF DEFAULT"~~“Event of Default”): (i) the failure of the Maker to pay any amount when due under the Note, which failure shall ~~occur with respect to any Borrower~~continue for three (3) business days; or (ii) the Maker shall be involved in financial difficulties as evidenced: (a) ~~Such Borrower~~ by its commencement of a voluntary case under Title 11 of the United States Bankruptcy Code as from time to time in effect (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or“Title 11”); (b) ~~Such Borrower shall default~~ by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under Title 11, or seeking, consenting to or acquiescing in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orrelief therein provided; (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the ~~Operations Agent; or~~entry of an order for relief in any involuntary case commenced under Title 11; (d) ~~Such Borrower shall default in~~ by the ~~performance~~ entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, or (C) assuming custody of, or ~~compliance with, any material term contained in any~~ appointing a receiver or other ~~written agreement with the Operations Agent~~ custodian for all or ~~any Bank pertaining to this Agreement or such Borrower's Loans,~~ a substantial part of its property and such ~~default shall continue for more than the period of grace, if any, specified therein and~~ order shall not ~~have been waived pursuant thereto; or~~be vacated or stayed on appeal or otherwise stayed within 120 days; (e) ~~Any representation, warranty certification~~ by the filing of a petition against the Maker under Title 11 which shall not be vacated or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orstayed within 120 days; (f) ~~Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness~~ by its making an assignment for ~~borrowed money or~~ the ~~deferred purchase price~~ benefit of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its ~~stated maturity~~creditors, or in appointing or consenting to the ~~performance~~ appointment of ~~or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture~~ a receiver or other ~~agreement relating thereto, and any such default shall continue~~ custodian for ~~more than the period~~ all or a substantial part of ~~grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before~~ its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessproperty; or (g) ~~Such Borrower shall discontinue~~ by its ~~business (other than~~ admitting in ~~connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally~~ writing its inability to pay its debts generally as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall ~~then~~ be ~~continuing with respect~~ continuing, at the option of the Holder of this Promissory Note without notice or demand to ~~such defaulting Borrower, (i) in~~ the ~~case of any Event of Default specified in paragraphs (g) and (h) above~~Maker, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the~~ outstanding principal of and all accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued but unpaid interest in respect of ~~such defaulting Borrower's Loans to~~ this Promissory Note shall be ~~forthwith~~ immediately due and payable. Following and during the continuation of an Event of Default under Section 4(i), ~~whereupon~~ the ~~principal~~ Maker agrees to pay on demand all reasonable costs and expenses of Holder, including reasonable attorneys’ fees, for the collection of this Note and ~~accrued interest in respect of such Loans shall become forthwith due~~ the indebtedness represented hereby and ~~payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ enforcement of the ~~Banks to make Committed Credit Loans~~ Holder’s rights hereunder ~~to such defaulting Borrower shall forthwith terminate without any other notice of any kind and~~ against the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationMaker.

Appears in 1 contract

Samples: Merger Agreement (Omtool LTD)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay when due and payable any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Revolving Credit Loans when the same becomes ~~due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or~~due; (b) ~~Such~~ the Borrower shall ~~default in~~ fail to pay interest on the ~~performance~~ Revolving Credit Loans, or any other sum due under any of ~~or compliance with any term contained in Sections 9.01(a~~the Loan Documents within two (2) ~~or 9.01(b) and such default~~ Business Days after the date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orfirst become due and payable; (c) ~~Such~~ the Borrower or any Subsidiary shall ~~default~~ fail to perform any term, covenant or agreement contained in ~~the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01~~(S)(S)7.1(a), 7.1(d) through (h), 7.2 and ~~such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or~~7.3; (d) ~~Such~~ the Borrower or any Subsidiary shall ~~default~~ fail to perform any other term, covenant or agreement contained in the ~~performance of, or compliance with, any material term contained in any other~~ Loan Documents within fifteen (15) days after the Agent has given written ~~agreement with~~ notice of such failure to the ~~Operations Agent or any Bank pertaining to this Agreement or such~~ Borrower~~'s Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or~~; (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrower or ~~statement made or deemed made by such Borrower~~ any of its Subsidiaries in ~~this Agreement~~ the Loan Documents or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made~~; or~~; (f) ~~Except as otherwise provided~~ the Borrower or any of its Subsidiaries shall be in ~~this Section 10.01~~default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to the Bank or any affiliates of the Bank, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ or ~~the deferred purchase price of property, the aggregate outstanding principal amount of which is~~ in excess of ~~five percent (5%) of~~ $500,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or; (g) ~~Such~~ any of the Loan Documents shall cease to be in full force and effect, (h) the Borrower ~~shall discontinue~~ or any of its ~~business~~ Subsidiaries (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or any of its Subsidiaries shall be unable to pay its debts as ~~such debts become due,~~ they mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment or ~~shall apply for or consent to~~ execution action against the ~~appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such~~ Borrower or any ~~substantial part~~ of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment whichits Subsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ the Borrower and its Subsidiaries exceeds ~~an amount~~ $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000aggregate; or (k) ~~Such Borrower shall cease to be~~ an ~~investment management company~~ Event of Default (~~or a Portfolio thereof~~as such term is defined in the SalesLink Agreement) ~~registered~~ has occurred and is continuing under the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended;~~ SalesLink Agreement then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting~~ the Borrower ~~(A)~~ declare all amounts owing with respect to this Credit Agreement, the ~~principal of~~ Revolving Credit Notes and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default -------- specified in (S)(S)8(h) or 8(i), all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank. If any one or more of the Events of Default specified in (S)8(h) or (S)8(i) shall occur, ~~and/or (B)~~ any unused portion of the credit hereunder shall forthwith terminate ~~the Commitments as to such defaulting Borrower, whereupon the Commitments~~ and each of the Banks shall be relieved of all further obligations to make ~~Committed~~ Revolving Credit Loans to the Borrower. If any other Event of Default shall have occurred and be continuing, the Agent may and, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Revolving Credit Loans. No termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of the Obligations. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Revolving Credit Loans pursuant to (S)8, each Bank, if owed any amount with respect to the Revolving Credit Loans, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such ~~defaulting Borrower~~ Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall ~~forthwith terminate without~~ have become -- ----- due, by declaration or otherwise, proceed to enforce the payment thereof or any other ~~notice~~ legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any ~~kind~~ Revolving Credit Note is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit Agreement (CMG Information Services Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ The Borrowers shall fail to pay when due and payable any principal of or interest on the Loans or any other sum due under any of the Loan Documents when the same becomes due; (b) The Borrowers shall fail to perform any term, covenant or agreement contained in Section 6 hereof; (c) The Borrowers or any Subsidiaries shall fail to perform any other term, covenant or agreement contained in this Agreement or any of the other Loan Documents, which failure continues for more than thirty (30) days; (d) Any representation or warranty of the Borrowers in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (e) Any Borrower or any of its Subsidiaries (i) shall be in default under any agreement or agreements evidencing Indebtedness (A) owing to the Bank or are affiliated with the Bank or (B) to any other person owing in excess of $50,000 in aggregate principal amount, which default shall give the ~~payment of principal of any Loan, interest accrued thereon or fee due hereunder after~~ holder thereof the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise~~right to accelerate such indebtedness, or (ii) shall ~~default in the payment of~~ fail to pay any ~~other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and~~ such ~~default shall have continued for more than three (3) Banking Days~~Indebtedness when due, or ~~such Borrower shall default in the performance of or compliance with~~ within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or; (f) ~~Except as otherwise provided~~ Any of the Loan Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect; (g) ~~Such~~ Any Borrower ~~shall discontinue~~ or any of its ~~business~~ Subsidiaries (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidate or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (h) Any Borrower or any of its Subsidiaries shall admit in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A There shall remain undischarged for more than ten (10) days any final judgment ~~which~~or execution action against any Borrower or any of its Subsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against the Borrower and such ~~Borrower,~~ Subsidiary exceeds ~~an amount~~ $50,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate. THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under paragraph (g) ~~and~~ or (h) ~~above~~concerning any Borrower, the ~~Commitments as to such defaulting Borrower~~ Commitment shall ~~thereupon~~ automatically ~~be terminated~~ terminate, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereof, and a other amounts payable hereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrowers; and (2) In the case of any Event of Default other than under paragraph (g) or (h), the Bank may, by written notice to the Borrower, ~~and/or (B)~~ terminate the ~~Commitments as to such defaulting Borrower, whereupon~~ Commitment and/or declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Credit Agreement (Eltrax Systems Inc)

Events of Default; Acceleration. 8.1 If any of the following events (~~each~~ an "~~EVENT OF DEFAULT~~Event of Default," or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, a "Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower~~ Borrowers shall fail to make any payment of principal or interest on any Loan within five (5) Business Days after the date that such payment is due; (b) Borrowers shall fail to pay any fees, overriding royalty payments or other sums due hereunder or under any Loan Document within ten (10) days after the date that any such payment is due; (c) Borrowers shall fail to either (i) ~~shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~make a prepayment to EIF, or (ii) grant and convey to EIF additional collateral, in compliance with the terms of Section 2.14 of this Agreement within the time period on which Section 2.14 requires Borrowers to take such action; (d) Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any Loan Document and such failure shall continue for thirty (30) days after written notice of such failure has been given to Borrower by EIF; (e) An event of default entitling EIF to accelerate any other loan from EIF to Borrower shall occur; (f) Any representation or warranty of Borrowers in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement or any other Loan Document shall prove to have been false in any material respect upon the date when made; (g) Either Borrower shall default in the payment of any ~~other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance~~ principal of or ~~compliance with~~ interest on any ~~term contained in Sections 9.01(a)~~ Indebtedness aggregating $25,000 or ~~9.01(b) and such default shall have continued for~~ more ~~than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with~~ beyond any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of ~~grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification~~ grace provided with respect thereto unless the validity or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness ~~to declare~~ shall currently be contested by such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation Borrowers in good faith by appropriate proceedings ~~promptly initiated~~ and ~~diligently conducted and~~ unless such Borrower shall have set aside on its books ~~such reserves, if any,~~ adequate reserves with respect ~~thereto as are required by GAAP~~ thereto; or any other event shall occur which is specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness if the effect of such event is to cause or to permit the holder or holders of such Indebtedness to cause (assuming the giving of any notice and ~~deemed appropriate by~~ the lapse of any time period commencing on the giving of notice) such Indebtedness to become due prior to its stated maturity; (h) Either Borrower ~~and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or~~ shall: (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or ~~consolidation of such Borrower) or shall make an assignment for~~ consent to the ~~benefit of creditors~~appointment of, or ~~shall fail~~ the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (ii) be generally unable to pay its debts as such debts become due; (iii) make a general assignment for the benefit of its creditors; (iv) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect); (v) file a petition seeking to take advantage of any other law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (vi) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against such Borrower in an involuntary case under the United States Bankruptcy Code; or (vii) take any action for the purpose of effecting any of the foregoing; (i) A proceeding or case shall ~~apply for~~ be commenced, without the application or consent to of Borrowers, in any court of competent jurisdiction, seeking (i) either Borrower's liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of ~~or taking possession by~~ a trustee, ~~receiver~~ receiver, custodian, liquidator or ~~liquidator (~~the like of either Borrower or ~~other similar official)~~ of ~~such Borrower~~ all or any substantial part of ~~the property~~ such Borrower's assets, or ~~assets~~ (iii) similar relief in respect of such Borrower under any law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or the composition or readjustment of its debts, and such proceeding or case shall ~~commence~~ continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a ~~case~~ period of sixty (60) days; or ~~have~~ an order for relief against either Borrower shall be entered ~~against it~~ in an involuntary case under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ insolvency, reorganization, winding-up, composition, readjustment of debt, dissolution or ~~other~~ liquidation or similar ~~law, or if~~ law of any ~~action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~jurisdiction; or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 1 contract

Samples: Financing Agreement (Foreland Corp)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ the Borrowers or the Guarantors shall ~~default in the payment of~~ fail to pay when due and payable any principal of the Loans or any ~~Loan, interest accrued thereon or fee due hereunder after~~ Reimbursement Obligations not funded by a Loan pursuant to Section 2.1(d) when the same becomes due and ~~payable, whether at maturity or by acceleration or otherwise~~payable hereunder, or any interest or other sum due under any of the Loan Documents within five (ii5) ~~shall default in~~ days following the ~~payment of any other amount due hereunder after~~ date when the same becomes due and ~~payable; or~~payable thereunder; (b) ~~Such Borrower~~ the Borrowers or the Guarantors shall ~~default in the performance of~~ fail to perform any term, covenant or ~~compliance with any term~~ agreement contained in ~~Sections 9.01(a~~Section 9.1(d)(A) or ~~9.01(b) and such default shall have continued for more than three~~ (~~3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d~~B), ~~8.02(e~~Section 9.1(e), ~~8.02(g), 8.05, 9.02, 9.03~~ Section 9.2 or ~~9.04; or~~Section 9.3; (c) ~~Such Borrower~~ the Borrowers or the Guarantors shall ~~default~~ fail to perform any other term, covenant or agreement contained in any of the ~~performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days~~ Loan Documents after the Agent has given written notice ~~thereof shall have~~ of such failure to the Borrowers and a period of thirty (30) days has passed without such failure having been ~~given to such Borrower by the Operations Agent; or~~cured or remedied; (d) ~~Such Borrower~~ any representation or warranty of the Borrowers or the Guarantors in any of the Loan Documents or in any document, certificate or other paper or notice given in connection therewith shall ~~default~~ have been false or misleading in ~~the performance of, or compliance with,~~ any material ~~term contained in any other written agreement with~~ respect at the ~~Operations Agent~~ time made or ~~any Bank pertaining~~ deemed to ~~this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not~~ have been ~~waived pursuant thereto; or~~made or repeated; (e) ~~Any representation~~(i) an "Event of Default" shall have occurred under and as defined in the German Loan Agreement, ~~warranty certification~~ (ii) any of the Borrowers, the Guarantors or ~~statement made~~ M Holdings or ~~deemed made by such Borrower~~ MCL shall be in ~~this Agreement~~ default under (A) the Senior Note Documents, (B) any agreement or agreements (other than the Loan Documents) evidencing Indebtedness owing to the Agent or any Bank, or any affiliates of the Agent or any Bank, or (C) any agreement or agreements evidencing other Indebtedness for or in respect of borrowed money or capitalized leases in excess of $1,000,000 in aggregate principal amount, or (iii) any ~~certificate~~of the Borrowers, ~~financial statement~~ the Guarantors or ~~other document delivered pursuant hereto~~ MCL shall ~~prove~~ fail to ~~have been false~~ pay any such Indebtedness specified in clauses (ii)(A), (B) or ~~incorrect in~~ (C) when due, or within any ~~material respect when made; or~~applicable period of grace; (f) ~~Except as otherwise provided~~ any of the Loan Documents executed and delivered shall cease to be in ~~this Section 10.01~~full force and effect, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ or the ~~deferred purchase price~~ Agent's Liens, for the benefit of ~~property~~the Banks and the Agent, on substantially all of the ~~aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default~~ Collateral shall ~~continue for more than~~ fail to be perfected at any time or shall fail to have the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with priority contemplated hereby at any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ortime; (g) ~~Such Borrower shall discontinue its business~~ any of the Borrowers, the Guarantors or M Holdings, MCL or any of the other Material Subsidiaries (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or ~~if any action shall be taken to dissolve~~ proceeding, such case or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If,~~ proceeding is not dismissed within sixty (60) days ~~after~~ following the commencement ~~against such Borrower~~ thereof, or (v) shall be the subject of a an order for relief in an involuntary case under ~~the~~ federal bankruptcy ~~laws~~law; (h) any of the Borrowers, ~~as now~~ the Guarantors or ~~hereafter constituted~~M Holdings, MCL or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the ~~property of such Borrower such appointment~~ other Material Subsidiaries shall ~~not have been vacated; or~~be generally unable to pay its debts as they mature; (i) A there shall remain undischarged for more than thirty (30) days any final judgment ~~which~~or execution action against any of the Borrowers, the Guarantors or M Holdings or MCL that, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and ~~if, within~~ execution actions that have remained undischarged for more than thirty (30) days ~~after entry thereof~~exceeds $1,000,000 in the aggregate; (j) any of the Borrowers, ~~such judgment~~ the Guarantors or M Holdings or MCL shall ~~not have been discharged or execution thereof stayed pending appeal~~be enjoined from conducting any part of its business, or ifthere shall occur any disruption to such business or loss or damage to the Borrowers' inventory, in each case where such condition would reasonably be likely to have a Materially Adverse Effect; (i) M Holdings shall cease to own at least 65% of the capital stock of MI of every class, (ii) any person or group of persons (within ~~thirty~~ the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended), other than the shareholders of M Holdings as of the Restatement Date, and their Affiliates, shall have acquired beneficial ownership (30within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) ~~days after~~ of more than 50% of the ~~expiration~~ outstanding shares of common or other voting stock of M Holdings; (iii) during any consecutive two-year period, individuals who were directors of M Holdings on the first day of such period (together with any new directors whose election by the board of directors of M Holdings or whose nomination for election by the stockholders of M Holdings was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease for any reason to constitute a majority of the board of directors of M Holdings; or (iv) a "Change of Control", as defined under the MI Indenture or the Parent Indenture, each as amended or supplemented and in effect from time to time, shall occur; (l) there shall occur a default by a Service Company (as defined in the Management Service Agreements), other than Gesellshaft fuer Elektrometallurgic m.b.H or Elektrowerk Weisweiler GmbH, under the terms of any ~~such stay, such judgment shall not have been discharged~~of the Management Service Agreements which results in a loss of revenue to the Borrowers under the Management Service Agreements in excess of $300,000 in the aggregate during any fiscal year; or (jm) ~~Such~~ with respect to an employee benefit plan within the meaning of Section 3.2 of ERISA maintained or contributed to by any Borrower or any ~~member~~ ERISA Affiliate, the benefits of which are guaranteed upon termination in full or in part by the PBGC (other than a multiemployer plan) (each a "Guaranteed Pension Plan"), a "reportable event" within the meaning of Section 4043 of ERISA for which the PBGC requires 30 day notice shall have occurred which the Majority Banks reasonably believe could reasonably be expected to result in the liability of any of the ~~Controlled Group shall fail to pay when due an amount~~ Borrowers or ~~amounts aggregating in excess~~ any of ~~$500,000 which it is obligated to pay~~ their Subsidiaries or any Guarantor to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event could reasonably be expected to constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a ~~Plan under Title IV of ERISA~~trustee to administer such Guaranteed Pension Plan; or a ~~notice of intent~~ trustee shall have been appointed by the United States District Court to ~~terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by~~ administer such ~~Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing~~Guaranteed Pension Plan; or the PBGC shall ~~institute~~ have instituted proceedings ~~under Title IV of ERISA~~ to terminate ~~or to cause a trustee to be appointed to administer any~~ such ~~Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Guaranteed Pension Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromTHEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clause (g) ~~and~~ or (h~~) above~~), the Commitments as shall automatically terminate, the Agent shall be relieved of all further obligations to ~~such defaulting Borrower shall thereupon automatically be terminated~~ issue, extend or renew Letters of Credit, and the Banks shall be relieved of all further obligations to make Loans or to participate in the issuance, renewal or extension of any Letters of Credit, German Loans or German Collateral Instruments, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereon, all Unpaid Reimbursement Obligations, all obligations of the ~~Loans~~ Borrowers and the Guarantors in respect of the German Guaranty and all other amounts payable hereunder and under the other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~each of the Borrowers, ~~and/or~~ and the Agent may, and upon the request of the Majority Banks shall, require that cash be delivered to the Agent in the amount of 105% of the sum of the Maximum Drawing Amount plus the aggregate amount of the German Outstandings to be held by the Agent, for the benefit of the Banks and the Agent, as cash collateral for all Reimbursement Obligations and the obligations of the Borrowers and the Guarantors in respect of the German Guaranty; and (B2) In the case of any Event of Default other than (g) and (h) which shall have occurred and be continuing, the Agent may, and upon the request of the Majority Banks shall, by written notice to the Borrowers, terminate the Commitments as and/or declare the unpaid principal amount of the Loans, all interest accrued and unpaid thereon, all Unpaid Reimbursement Obligations, all obligations of the Borrowers and the Guarantors in respect of the German Guaranty, and all other amounts payable hereunder and under the other Loan Documents to ~~such defaulting Borrower~~be forthwith due and payable, ~~whereupon~~ without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each of the ~~Commitments~~ Borrowers, and the Agent may, and upon the request of the Majority Banks shall, require that cash be delivered to the Agent in the amount of 105% of the sum of the Maximum Drawing Amount plus the aggregate amount of the German Outstandings to be held by the Agent, for the benefit of the Banks and the Agent, as cash collateral for all Reimbursement Obligations and the obligations of the Borrowers and the Guarantors in respect of the German Guaranty. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Obligations pursuant to ~~make Committed Credit Loans hereunder~~ this Section 10, each Bank, if owed any amount with respect to the Loans, the Reimbursement Obligations, or the German Outstandings, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such ~~defaulting Borrower~~ Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall ~~forthwith terminate without~~ have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other ~~notice~~ legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any ~~kind~~ Note or purchaser of any Letter of Credit Participation or participant in any German Obligations is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Loan Agreement (Metallurg Inc)

Events of Default; Acceleration. If Any or all Obligations shall, at the option of one or both of the Secured Parties, become immediately due and payable, without presentment, protest, notice or demand, upon the occurrence of any of the following events ~~(each an "EVENT OF DEFAULT") shall occur with respect to any Borrower~~of default: (a) ~~Such Borrower~~ if any payment of a Deferred Payment (ias defined in the Interest Transfer Agreement) shall ~~default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder~~ not be fully paid after the same ~~becomes due~~ shall fall due, subject to any applicable notice and ~~payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable~~grace periods; or, (b) ~~Such Borrower shall~~ if default exists in the ~~performance~~ due observance of any covenants or ~~compliance~~ agreements of Debtor contained herein or in any other agreements with ~~any term contained in Sections 9.01(a~~the Secured Parties including without limitation the Interest Transfer Agreement and is not remedied within thirty (30) ~~or 9.01(b) and~~ days after either Secured Party shall have delivered to Debtor a written notice requesting that such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04be remedied; or, (c) ~~Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred~~ if Debtor becomes insolvent as evidenced by an inability to ~~in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~pay its debts as they mature; or, (d) ~~Such Borrower shall default in~~ if Debtor becomes bankrupt, provided that with respect to an involuntary bankruptcy, the ~~performance of,~~ bankruptcy is not released or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period discharged within ninety (90) days of ~~grace, if any, specified therein and shall not have been waived pursuant thereto~~its filing; or, (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make Debtor makes an assignment for the benefit of its creditors~~, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent~~ ; or, (f) if Debtor consents to the appointment of a trustee or ~~taking possession by~~ receiver of all or a ~~trustee, receiver or liquidator (or other similar official) of such Borrower or any~~ substantial part of ~~the property~~ its properties or ~~assets of~~ such ~~Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws~~appointment is made without its consent, ~~as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or~~ and not vacated within thirty (30) days; or, (g) if any ~~action shall be taken to dissolve~~ warranty, statement or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation~~ representation by Debtor contained herein proves materially incorrect as of ~~such Borrower); or (h) If,~~ the date given and is not corrected within sixty (60) days after one or both Secured Parties shall have delivered to Debtor a written notice requesting such correction; or, (h) the ~~commencement against~~ acceleration of the maturity of the indebtedness of Debtor to any other secured creditor of Debtor (excepting only any holder of purchase money security interests to the extent of such ~~Borrower of a case~~ interests) under ~~the federal bankruptcy laws~~any indenture, ~~as now or hereafter constituted~~agreement, judicial order, decree, or undertaking, and after five (5) days the acceleration is not rescinded or the accelerated obligation satisfied in full; provided, however, that if the acceleration of the maturity of the indebtedness of Debtor to any other ~~applicable federal~~ secured creditor of Debtor is cured within 15 days of the acceleration, the Secured Parties will rescind the acceleration hereunder; or, (i) failure of the Debtor to furnish financial information or ~~state bankruptcy~~to permit the inspection of books and records, ~~insolvency or other similar law~~all as required hereunder, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within continuing for more than sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationnotice.

Appears in 1 contract

Samples: Security Agreement (Caprius Inc)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT~~ EVENTS OF DEFAULT") shall occur ~~with respect to any Borrower:~~ and be continuing: (a) ~~Such Borrower (i)~~ the Company shall default in the payment of any principal of or Make Whole Amount or Premium Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise, ; or (iib) the Company shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under this Agreement or any Other Agreement for more than 5 Business Days after the same becomes due and payable; or or (bc) ~~Such Borrower~~ the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a) or 9.01(b)~~ SECTION 7(f), any of SECTIONS 10.1 through 10.10 (other than SECTION 10.7, insofar as it relates to Restricted Subsidiaries other than the Operating Partnership, and ~~such default shall have continued for more than three (3) Banking Days~~SECTION 10.10(c)), inclusive, or ~~such Borrower~~ SECTION 10.21; or (d) the Company, either General Partner or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking~~ 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent~~Company from any Note holder; oror (e) any material representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement (di) ~~Such Borrower~~ the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace(after receiving notice, if any, ~~specified therein and shall not have been waived pursuant thereto; or (e~~and/or the expiration of any applicable grace period) ~~Any representation, warranty certification~~ in the payment of any amount of principal of or ~~statement made~~ premium or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due interest on Indebtedness ~~for borrowed money~~ that is outstanding in an aggregate amount at least equal to $10,000,000; or ~~the deferred purchase price~~ (ii) any event shall occur or condition shall exist in respect of ~~property, the~~ Indebtedness that is outstanding in an aggregate ~~outstanding~~ principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, at least $10,000,000 or ~~in the performance of or compliance with any term of~~ under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating ~~thereto~~to such Indebtedness, ~~and any such default shall continue for more than~~ the ~~period~~ effect of ~~grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of~~ which is to cause such Indebtedness to ~~declare such Indebtedness~~ become due ~~and payable~~ before its stated ~~maturity, unless such Borrower shall be contesting such payment~~ maturity or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on~~ before its ~~books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event~~ regularly scheduled dates of ~~Default pursuant to paragraphs (b)~~ payment; or ~~(i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or~~ (g) ~~Such Borrower shall discontinue~~ filing by or on the behalf of the Company or the Operating Partnership of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its ~~business~~ debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("BANKRUPTCY LAW"), or any action by the Company or the Operating Partnership, or consent or acquiescence to, the appointment of a receiver, trustee or other ~~than in connection with~~ custodian of the Company or the Operating Partnership, or of all or a ~~permitted merger~~ substantial part of its property; or ~~consolidation~~ the making by the Company or the Operating Partnership of ~~such Borrower) or shall make an~~ any assignment for the benefit of creditors, ; or ~~shall fail generally~~ the admission by the Company or the Operating Partnership in writing of its inability to pay its debts as ~~such debts~~ they become due; or (h) filing of any involuntary petition against the Company or the Operating Partnership in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or ~~shall apply~~ for ~~or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or~~ any other ~~similar official) of such Borrower or~~ relief under any ~~substantial part of the property or assets of such Borrower or shall commence a case or have~~ Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered ~~against it under the federal bankruptcy laws, as now or hereafter constituted,~~ therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law,~~ powers over the Company or ~~if any action shall be taken to dissolve~~ the Operating Partnership or ~~liquidate such Borrower (other than in connection with~~ over all or a ~~permitted merger or consolidation~~ part of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of the ~~stay~~ Company or the Operating Partnership or of ~~any such order~~ all or ~~proceeding shall thereafter be set aside,~~ a substantial part of its property; or ~~if within sixty (60) days after~~ the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of the Company or the Operating Partnership; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for sixty (60) consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or or (i) ~~A final judgment which, together with~~ filing by or on the behalf of the Managing General Partner or any Restricted Subsidiary (other ~~outstanding final judgments against such Borrower, exceeds an amount in~~ than the ~~aggregate equal to five percent (5%~~Operating Partnership) of ~~such Borrower's Total Assets (exclusive~~ a voluntary petition or an answer seeking reorganization, arrangement, readjustment of ~~amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged~~ its debts or ~~execution thereof stayed pending appeal~~for any other relief under any Bankruptcy Law, or ifany action by the Managing General Partner or any such Restricted Subsidiary for, ~~within thirty (30) days after~~ or consent or acquiescence to, the ~~expiration~~ appointment of a receiver, trustee or other custodian of the Managing General Partner or such Restricted Subsidiary or of all or a substantial part of its property; or the making by the Managing General Partner or any such Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by the Managing General Partner or any such ~~stay, such judgment shall not have been discharged~~Restricted Subsidiary in writing of its inability to pay its debts as they become due; or or (j) ~~Such Borrower~~ filing of any involuntary petition against the Managing General Partner or any ~~member~~ Restricted Subsidiary (other than the Operating Partnership) in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~Controlled Group~~ premises shall ~~fail to pay when due an amount~~ have been issued or ~~amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA~~entered therein; or ~~a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000~~ any other similar relief shall be ~~filed~~ granted under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.any

Appears in 1 contract

Samples: Senior Notes Agreement (Cornerstone Propane Partners Lp)

Events of Default; Acceleration. If any one or more of the ------------------------------- following events (~~each an~~ herein called "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower:~~occur: ----------------- (a) ~~Such Borrower (i)~~ if an "Event of Default" under and as defined in any of the Credit Agreements shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payablehave occurred; or (b) ~~Such Borrower~~ if the Trustor shall default in the due and punctual performance or observance of any of its obligations under Section 1.4, 1.5, 1.7, 1.9, ----------- --- --- --- or ~~compliance~~ 2.1; or --- (c) if the Trustor shall fail to duly and punctually perform or comply with any ~~term contained~~ provision of this Deed of Trust other than the provisions referred to in ~~Sections 9.01(a~~clause (a) or ~~9.01(b~~(b) of this Section 3.1 and such default shall ~~have continued~~ continue ---------- --- ----------- unremedied for ~~more than three (3) Banking Days,~~ a period of 30 days after the date that notice of such nonperformance or ~~such Borrower shall default in~~ noncompliance is delivered to the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations AgentTrustor; or (d) ~~Such Borrower shall default~~ if the Trustor shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, convey, transfer, assign, grant a security interest in or otherwise dispose of the ~~performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent~~ Collateral or any ~~Bank pertaining to this Agreement~~ portion thereof or ~~such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~estate or interest therein; or (e) ~~Any representation, warranty certification or statement made or deemed made by such Borrower in~~ if subsequent to the date of this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or Deed of Trust the ~~deferred purchase price~~ law of ~~property,~~ the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower State shall be ~~contesting such payment~~ changed by statutory enactment, judicial decision, regulation or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves~~otherwise, ~~if any, with respect thereto~~ so as ~~are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or~~ (i) to deduct from the value of land for the purpose of taxation (for state, county, municipal or other purpose) any lien or charge thereon, or (ii) to change the taxation of deeds of trust, mortgages or debts secured by land or the manner of collecting any such taxation, so as to affect this ~~Section 10.01~~ Deed of Trust, and thereafter, within 30 days following receipt of a written request from the Beneficiary, the Trustor shall have ~~occurred~~ failed to enter into a lawful and ~~be continuing as a result of such claim having been asserted~~ binding agreement with the Beneficiary, satisfactory in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent substance and form to the ~~appointment of or taking possession~~ Beneficiary, obligating the Trustor to reimburse the Beneficiary for any increase in taxation imposed on the Beneficiary by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay reason of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such ~~event, and~~ event the Beneficiary may at any time ~~thereafter~~thereafter exercise any right or remedy granted to the Beneficiary under the Credit Agreements or the other Loan Documents or available to the Beneficiary at law or in equity including, ~~if any Event of Default shall then~~ without limitation, declare, by written notice to the Trustor, the Secured Obligations and all other Obligations to be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default~~ due and payable immediately or on a date specified in ~~paragraphs (g)~~ such notice, and ~~(h) above,~~ on such date the ~~Commitments as to such defaulting Borrower~~ same shall ~~thereupon automatically~~ be ~~terminated~~ and ~~the principal of and accrued interest on the Loans shall automatically~~ become due and ~~payable~~ payable, together with interest accrued thereon, without presentment, demand, protest or ~~other notice or formality of any kind~~notice, all of which ~~are~~ the Trustor hereby ~~expressly waived~~waives. The Trustor will pay on demand all costs and expenses, including, without limitation, attorneys' fees and ~~(ii)~~ expenses, incurred by or on behalf of the Beneficiary in enforcing this Deed of Trust or the ~~case of~~ Secured Obligations or any other ~~Event of Default specified above~~Loan Document, ~~either~~ or ~~both of the following actions may be taken: the Operations Agent may, and upon the written~~ occasioned by any default hereunder or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationthereunder.

Appears in 1 contract

Samples: Deed of Trust, Security Agreement, Assignment of Rents and Leases, and Fixture Filing (Aristotle Corp)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT~~ EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, "DEFAULTS") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of the Loans or any ~~Loan, interest accrued thereon or fee due hereunder after~~ Reimbursement Obligation when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such~~ the Borrower shall ~~default in~~ fail to pay any interest on the ~~performance~~ Loans, any Letter of Credit Fee, the Facility Fee, the Utilization Fee or ~~compliance with~~ other sums due hereunder or under any ~~term contained in Sections 9.01(a)~~ of the other Loan Documents, on or ~~9.01(b)~~ prior to the second day immediately succeeding the day on which the same shall become due and ~~such default shall have continued~~ payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for ~~more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~payment; (c) ~~Such~~ the Borrower or any Subsidiary of the Borrower shall ~~default in the performance of or compliance~~ fail to comply with any ~~term~~ of its covenants contained ~~herein other than those expressly referred~~ in Sections 5.9, 5.10, 5.12, 5.15 through 5.17, inclusive, Section 6 or Section 7; (d) the Borrower fails to perform any term, covenant or agreement contained in ~~this~~ Section ~~10.01, and such default shall not have been remedied within~~ 5.4 for five (5) ~~Banking Days~~ days after written notice ~~thereof shall have~~ of such failure has been given to ~~such~~ the Borrower by the ~~Operations Agent; or (d) Such~~ Administrative Agent or the Borrower shall ~~default in the performance of~~fail to perform any other term, covenant or ~~compliance with, any material term~~ agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this Section 10) for thirty (30) days after written ~~agreement with~~ notice of such failure has been given to the ~~Operations~~ Borrower by the Administrative Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace~~or, if ~~any~~such performance is not possible within such thirty (30) day period, ~~specified therein~~ the Borrower shall fail to undertake such performance within such thirty (30) day period and ~~shall not have been waived pursuant thereto; or~~thereafter to diligently and in good faith pursue the completion of such performance; (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrower or ~~statement made or deemed made by such Borrower~~ any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any ~~certificate, financial statement or~~ other document or instrument delivered pursuant ~~hereto~~ to or in connection with this Credit Agreement shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (f) ~~Except as otherwise provided in this Section 10.01~~the Borrower or any of its Subsidiaries shall (i) fail to pay at maturity, ~~such Borrower shall default in~~ or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, ~~if any~~any obligation for borrowed money in an aggregate amount equal to or greater than 2% of the Consolidated Capitalization of the Borrower or (ii) fail to observe or perform any term, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ covenant or agreement relating to or contained in any instrument or agreement evidencing or securing any obligation for borrowed money which results in the ~~holder~~ acceleration (whether by declaration or automatically) of such ~~Indebtedness~~ indebtedness in an aggregate amount equal to ~~declare such Indebtedness due and payable before its stated maturity,~~ or in greater than 2% of the ~~performance~~ Consolidated Capitalization of ~~or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orBorrower; (g) ~~Such~~ the Borrower ~~shall discontinue~~ or any of its ~~business (other than in connection with a permitted merger or consolidation of such Borrower) or~~ Material Subsidiaries shall make an assignment for the benefit of creditors, or ~~shall~~ admit in writing its inability to pay or generally fail ~~generally~~ to pay its debts as ~~such debts~~ they mature or become due, or shall petition or apply for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such~~ the Borrower or any of its Material Subsidiaries or of any substantial part of the ~~property or~~ assets of ~~such~~ the Borrower or any of its Material Subsidiaries or shall commence a any case or ~~have an~~ other proceeding relating to the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of its Material Subsidiaries and the Borrower or any of its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Borrower or any Material Subsidiary of the Borrower in an involuntary case under ~~the~~ federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or; (i) A there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment ~~which~~against the Borrower or any of its Subsidiaries that, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged and not covered by insurance, against such ~~Borrower,~~ Person(s) exceeds ~~an amount~~ in the aggregate ~~equal to~~ five ~~percent~~ (5%) percent of ~~such~~ the Consolidated Net Worth of the Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) ~~Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating~~ a Change in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedControl occurs; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Administrative Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting~~ the Borrower ~~(A)~~ declare all amounts owing with respect to this Credit Agreement, the ~~principal of~~ Notes, the other Loan Documents and ~~accrued interest in respect of such defaulting Borrower's Loans~~ all Reimbursement Obligations to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; PROVIDED that in the event of any Event of Default specified in Section 10(g) or Section 10(h), all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. If any one or more of the Events of Default specified in Section 10(g) or Section 10(h) shall occur, ~~and/or (B)~~ any unused portion of the credit hereunder shall forthwith terminate ~~the Commitments as to such defaulting Borrower, whereupon the Commitments~~ and each of the Banks shall be relieved of all obligations to make ~~Committed Credit~~ Loans hereunder and the Administrative Agent shall be relieved of all further obligations to ~~such defaulting Borrower shall forthwith terminate without~~ issue, extend or renew Letters of Credit. If any other Event of Default shall have occurred and be continuing, the Administrative Agent, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. If any such notice is given to the Borrower, the Administrative Agent will forthwith furnish a copy thereof to each of the Banks. No termination of the credit hereunder shall relieve the Borrower of any ~~kind and the percentages~~ of the ~~Commitment Fee and~~ Obligations or any of its existing obligations to the Banks arising under other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationagreements or instruments.

Appears in 1 contract

Samples: Revolving Credit Agreement (Telephone & Data Systems Inc /De/)

Events of Default; Acceleration. If In any of the following events (~~each an~~ "~~EVENT~~ EVENTS OF DEFAULT" or, in the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "DEFAULTS") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ if the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of any ~~Loan, interest accrued thereon or fee due~~ Loan outstanding to it hereunder ~~after~~ when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such~~ if the Borrower shall ~~default in~~ fail to pay any interest on any Loan outstanding to it when the ~~performance~~ same shall become due and payable, whether at the stated date of maturity or ~~compliance with~~ any ~~term contained in Sections 9.01(a)~~ accelerated date of maturity or ~~9.01(b)~~ at any other date fixed for payment, and such ~~default~~ failure shall ~~have continued~~ continue unremedied promptly after notice and in any event within for ~~more than~~ three ~~(3) Banking~~ Business Days~~, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~; (c) ~~Such~~ if the Borrower shall ~~default in~~ fail to pay its Commitment Fee when the ~~performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01~~same shall become due and payable, and such ~~default~~ failure shall ~~not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or~~continue unremedied for three Business Days; (d) ~~Such~~ if the Borrower shall ~~default in~~ fail to perform, discharge, observe or comply with any of the ~~performance of~~terms, ~~or compliance with, any material term~~ covenants and agreements contained in ~~any other written agreement with the Operations Agent~~ Section 5.1, 5.6(f), 5.7, 5.10 or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or5.11; (e) ~~Any representation~~if the Borrower shall fail to perform, discharge, observe or comply with any of the terms, covenants and agreements contained herein (other than those specified in paragraphs (a), (b), (c), and (d) of this Section 6.1), and such failure shall continue unremedied for 30 days after written notice of such failure has been given to the Borrower by the Bank; (f) if any representation or warranty ~~certification or statement made or deemed made by such~~ of the Borrower contained in this Agreement or in any ~~certificate, financial statement or~~ other document or instrument delivered by the Borrower pursuant ~~hereto~~ to or in connection with this Agreement shall prove to have been false or ~~incorrect~~ misleading in any material respect as of the time when made or deemed to have been made~~; or~~; (fg) ~~Except as otherwise provided in this Section 10.01, such~~ if the Borrower shall ~~default~~ fail in ~~any payment due on Indebtedness for borrowed money~~ the performance or the ~~deferred purchase price of property~~payment, ~~the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the~~ at maturity or within an applicable period of grace, ~~if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder~~ of ~~such Indebtedness~~ any obligation contained in any agreement or instrument evidencing any other indebtedness with respect to ~~declare such Indebtedness due and payable before its stated maturity~~borrowed money or credit received, or ~~in the performance of or compliance with any term of any evidence of such Indebtedness or of~~ any mortgage, pledge, agreement, indenture or other agreement relating thereto, ~~and any~~ for such ~~default shall continue for more than the~~ period of ~~grace~~time as would, or would have permitted (assuming the giving of appropriate notice if ~~any, specified therein and shall not have been waived pursuant thereto and shall permit~~ required) the holder or holders thereof or of ~~such Indebtedness~~ any obligations issued thereunder to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oraccelerate the maturity thereof; (gh) ~~Such~~ if the Borrower ~~shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become due, or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator~~ trustee (in bankruptcy) or other ~~similar official)~~ custodian, liquidator or receiver of ~~such~~ the Borrower or of any substantial part of the property or assets of ~~such~~ the Borrower or ~~shall commence a~~ commences any case or ~~have~~ other proceeding relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action or authorize or in furtherance of any of the foregoing; (i) if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower and the Borrower indicates its approval thereof, consent thereto or acquiescence therein or an order for relief or appointing any such trustee (in bankruptcy), custodian, liquidator or receiver is entered ~~against it under~~ adjudicating the ~~federal bankruptcy laws, as now~~ Borrower bankrupt or ~~hereafter constituted~~insolvent, or approving a petition in any ~~other applicable federal or state bankruptcy, insolvency~~ such case or other ~~similar law~~proceeding, and such order remains unstayed and in effect for more than 60 days, whether or ~~if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or~~not consecutive; (hj) Ifif there shall remain in force, ~~within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws~~undischarged, ~~as now~~ unsatisfied and unstayed, for more than 30 days, whether or ~~hereafter constituted~~not consecutive, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment ~~which~~against the Borrower that, ~~together~~ with other outstanding final judgments undischarged against ~~such~~ the Borrower, ~~exceeds an amount~~ (i) exceeds, in the ~~aggregate equal to five percent~~ aggregate, $25,000 or (5%ii) shall have a materially adverse effect upon the business, assets, operations, prospects or condition (financial or otherwise) of ~~such~~ the Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) ~~Such Borrower~~ if there shall ~~cease to be an investment management company (~~occur a material adverse change in the business, assets, operations, prospects or ~~a Portfolio thereof) registered under~~ condition, financial or otherwise, of the ~~Investment Company Act, or such~~ Borrower~~'s registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~; ~~then,~~ then and in any such ~~event,~~ event and subject to the PROVISO at ~~any time thereafter, if any Event~~ the end of ~~Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Section 6.1, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions Bank may ~~be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall,~~ by written notice to ~~such defaulting~~ the Borrower declare (Ai) ~~declare~~ the ~~principal~~ obligation of the Bank to make Loans to the Borrower to be terminated, whereupon the same shall terminate, (ii) the Loans of the Borrower, all interest thereon and ~~accrued interest in respect of such defaulting Borrower's Loans~~ all other amounts payable by the Borrower under this Agreement to be forthwith due and payable, whereupon ~~the principal of~~ such Loans, all such interest and ~~accrued interest in respect of~~ all such ~~Loans~~ other amounts shall become and be forthwith due and payable without presentment, demand, protest or notice (other ~~notice of any kind~~than as required above), all of which are ~~hereby~~ expressly waived by ~~such~~ the Borrower, ~~and/or (B) terminate~~ PROVIDED that upon the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ occurrence of any of the ~~Banks~~ events specified in paragraphs (h) or (i) of this Section 6.1, such termination of the obligations to make ~~Committed Credit~~ Loans ~~hereunder to such defaulting Borrower~~ and acceleration of the maturity of the Loans shall ~~forthwith terminate~~ occur automatically and without any action by the Bank. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans of the Borrower pursuant to the foregoing, the Bank may proceed to protect and enforce its rights by suit in equity, action at law and/or other ~~notice~~ appropriate proceeding, whether for the specific performance of any ~~kind and~~ covenant or agreement contained in this Agreement or any instrument pursuant to which the ~~percentages~~ obligations of the ~~Commitment Fee~~ Borrower to the Bank hereunder are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Bank hereunder. No remedy conferred upon the Bank herein is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Credit Agreement (High Yield Plus Fund Inc)

Events of Default; Acceleration. If The occurrence of any one or more of the following events shall constitute a default under this Agreement, each of the Loan Documents, and each of the Obligations (~~each~~ individually, an "~~EVENT OF DEFAULT~~Event of Default") shall occur with respect to any Borrower: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and ~~such default shall not have been remedied within five~~ collectively, "Events of Default"): (51) ~~Banking Days after written notice thereof shall have been given to such Borrower~~ if any statement, representation or warranty made by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower BORROWER in this Agreement or in any ~~certificate~~of the Loan Documents, or in connection with any of the same, or if any financial ~~statement~~ statement, report, schedule, or ~~other document delivered pursuant hereto~~ certificate furnished by the BORROWER or any of its officers or accountants to the BANK, shall prove to have been false or ~~incorrect~~ misleading when made (as determined in the BANK's reasonable discretion); (2) default by the BORROWER in payment on its due date of any ~~material respect when made; or~~ principal or interest called for under any of the Loans or the Loan Documents (~~f) Except as otherwise provided in this Section 10.01, such Borrower shall default in~~ excepting any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing arising as a result of the BANK's failure to automatically charge the BORROWER's accounts as authorized by the BORROWER under this Agreement, provided that there are sufficient funds in such ~~claim having been asserted~~ accounts to make such automatic payment, or there is sufficient availability under the Revolving Line of Credit Loan to make such automatic payment), or of other amounts due under any other of the Obligations, or other event of default under the Loan Documents or the other Obligations, provided in ~~respect~~ each case such default is not cured within any applicable grace period thereunder; (3) default by the BORROWER in the performance or observance of any of the provisions, terms, conditions, warranties or covenants of this Agreement, the Loan Documents, or any other of the Obligations; provided that any such ~~Indebtedness; or (g) Such Borrower shall discontinue its business~~ default (other than ~~in connection~~ a payment default) is not cured within fifteen (15) days of the occurrence thereof, and further provided that no such cure period shall be afforded hereunder with respect to any default which by its nature cannot be cured (such as a ~~permitted~~ financial covenant default) or which default has an immediate material adverse effect upon the rights of the BANK under this Agreement or any of the Loan Documents, or upon the financial condition of the BORROWER, or upon the Collateral taken as a whole; (4) the dissolution, termination of existence, merger or consolidation of ~~such Borrower)~~ the BORROWER or ~~shall make an assignment for the benefit~~ a sale of ~~creditors,~~ all or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part substantially all of the ~~property~~ BORROWER's business, assets or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations properties or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall Collateral not ~~have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount~~ in the ~~aggregate equal to five percent (5%)~~ ordinary course of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.business;

Appears in 1 contract

Samples: Commercial Loan Agreement (Skillsoft Public Limited Co)

Events of Default; Acceleration. ~~If any~~ An “Event of ~~the following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower~~Default” occurs if: (a1) ~~Such Borrower (i) shall default~~ The Company defaults in the payment of any principal of any ~~Loan~~Debenture when the same shall become due, either by the terms thereof or otherwise as herein provided; or (2) The Company defaults in the payment of interest ~~accrued thereon or fee due hereunder after~~ on any Debenture when the same becomes due and ~~payable, whether at maturity or by acceleration or otherwise, or (ii) shall~~ payable and the default ~~in the payment~~ continues for a period of ~~any other amount due hereunder after the same becomes due and payable~~five days; or (b3) ~~Such Borrower shall default~~ The Company or any of its Subsidiaries defaults in the performance or observance of any other agreement, term or ~~compliance with any term~~ condition contained in ~~Sections 9.01(a)~~ the Debentures, this Agreement or ~~9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in~~ the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Related Agreements and such default shall not have been remedied within ~~five~~ thirty (530) ~~Banking Days~~ days after written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent~~Company (regardless of the source of such notice); or (d4) ~~Such Borrower shall default in the performance of, or compliance with,~~ With respect to any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement Indebtedness or other ~~document delivered pursuant hereto shall prove~~ obligation with respect to ~~have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness~~ debt for borrowed money or the ~~deferred purchase price of property, the aggregate~~ outstanding principal amount of which is greater than $1,000,000, the Company or any Subsidiary shall default (subject to any applicable grace period) in ~~excess~~ the payment of ~~five percent (5%)~~ any principal of ~~such Borrower's Total Assets, and such default shall continue for more than the period of grace~~or premium, if any, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of~~ or interest on such Indebtedness ~~to declare such Indebtedness due and payable before its stated maturity,~~ or other obligation or shall default in the performance of ~~or compliance with~~ any material term of any ~~evidence of~~ instrument evidencing such Indebtedness or other obligation or of any mortgage, indenture or ~~other~~ agreement relating thereto, and ~~any~~ the effect of such default ~~shall continue for more than the period of grace~~is to cause, ~~if any, specified therein and shall not have been waived pursuant thereto and shall~~ or to permit the holder or holders of such Indebtedness or other obligation to ~~declare~~ cause, such Indebtedness or other obligation to become due and payable ~~before~~ prior to its stated maturity, unless such ~~Borrower shall be contesting such payment~~ failure to pay or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower~~ perform shall have ~~set aside on its books~~ been waived in writing by the requisite holders of such ~~reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs~~ Indebtedness or other obligation; or (b) ~~or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having~~ the Indebtedness under the Trust Preferred Financing has been ~~asserted in respect of such Indebtedness~~accelerated; or (g5) ~~Such Borrower shall discontinue~~ The Company or any Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its ~~business~~ property, (~~other than in connection with~~ D) makes a ~~permitted merger or consolidation of such Borrower) or shall make an~~ general assignment for the benefit of its creditors, ~~or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to~~ or (E) is the ~~appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part~~ debtor in an involuntary case which is not dismissed within 60 days of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)commencement thereof; or (h6) ~~If, within sixty~~ A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (60A) ~~days after~~ provides for relief against the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting~~ Subsidiary in an involuntary case, (B) appoints a Custodian of the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower Company or any ~~substantial part~~ Subsidiary for all or substantially all of its property, or (C) orders the liquidation of the ~~property of such Borrower such appointment shall not have been vacated~~Company or any Subsidiary; or (i7) A final judgment ~~which, together with other outstanding final judgments against such Borrower, exceeds~~ for the payment of money in an amount in ~~the aggregate equal to five percent (5%)~~ excess of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $1,000,000 shall be rendered against ~~such Borrower and if, within thirty~~ the Company or any of its Subsidiaries (~~30) days after entry thereof, such~~ other than any judgment as to which a reputable insurance company shall not have ~~been discharged or~~ denied liability) and shall remain undischarged for a period (during which execution ~~thereof stayed pending appeal, or if, within thirty (30~~shall not be effectively stayed) of 60 days after the ~~expiration of any such stay, such judgment shall not have been discharged~~date on which the right to appeal has expired; or (~~j) Such Borrower~~ 8) Any representation or ~~any member of~~ warranty made by the ~~Controlled Group~~ Company in this Agreement shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee prove to be ~~appointed to administer any such Plan~~ materially false or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of~~ incorrect on the ~~Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason~~ date as of which ~~the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated~~made; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such ~~event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ case (ia) in upon the ~~case~~ occurrence of any Event of Default ~~specified~~ described in ~~paragraphs~~ clause (g5) ~~and~~ or (h6) above, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the~~ unpaid principal amount of and accrued and unpaid interest on the ~~Loans~~ Debentures shall automatically become due and ~~payable~~ payable, without presentment, demand, protest or ~~other~~ notice ~~or formality~~ of any kind, all of which are hereby ~~expressly waived~~waived by the Company, and (iib) in subject to the ~~case~~ immediately following paragraph, upon the occurrence of any other Event of ~~Default specified above~~Default, ~~either~~ in addition to any other rights, powers and remedies permitted by law or ~~both~~ in equity, the holder or holders of greater than 50% in principal amount of the ~~following actions may be taken: the Operations Agent~~ Debentures then outstanding may, ~~and upon~~ at its or their option, by notice in writing to the ~~written or telephonic (confirmed in writing) request~~ Company, declare all of the ~~Majority Banks shall~~Debentures to be, ~~by written notice to such defaulting Borrower (A) declare~~ and all of the ~~principal of~~ Debentures shall thereupon be and ~~accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable together with interest accrued and unpaid thereon and all other sums due hereunder, without presentment, demand, protest or other notice of any kind, all of which are ~~hereby expressly~~ waived by the Company. Upon the occurrence of any such ~~Borrower~~Event of Default, ~~and/or (B) terminate~~ the ~~Commitments as~~ holders of Debentures may proceed to ~~such defaulting Borrower~~protect and enforce their rights by an action at law, ~~whereupon~~ suit in equity or other appropriate proceeding, whether for the ~~Commitments~~ specific performance of any agreement contained herein or in the Debentures held by them, for an injunction against a violation of any of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ terms hereof or thereof, or for the pursuit of any other ~~notice~~ remedy which it may have by virtue of this Agreement or pursuant to applicable law. The Company shall pay to the holders of Debentures upon demand the reasonable costs and expenses of collection and of any ~~kind~~ other actions referred to in this Article VIII, including without limitation reasonable attorney’s fees, expenses and disbursements. No course of dealing and no delay on the ~~percentages~~ part of the ~~Commitment Fee and~~ holders of Debentures in exercising any of their rights shall operate as a waiver thereof or otherwise prejudice the rights of any holder of the Debentures, nor shall any single or partial exercise of any right, power or remedy preclude any other ~~fees and expenses otherwise payable~~ or further exercise thereof or the exercise of any other right, power or remedy hereunder. No right, power or remedy conferred hereby or by ~~such defaulting Borrower hereunder accruing from and after~~ the ~~date of termination~~ Debentures on the holders thereof shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ exclusive of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~any other right, as power or remedy referred to herein or therein or now or hereafter available at law, in ~~effect at the time of such termination~~equity, by statute or otherwise.

Appears in 1 contract

Samples: Subordinated Debenture Purchase Agreement (Fortegra Financial Corp)

Events of Default; Acceleration. ~~If any~~ Any of the following ~~events (each~~ shall constitute an "~~EVENT OF DEFAULT~~Event of Default"~~) shall occur with respect to any Borrower:~~: ---------------- (a) ~~Such Borrower (i)~~ the Company shall default in ~~the~~ any payment of any principal of amount outstanding hereunder or under any ~~Loan, interest accrued thereon or fee due hereunder after the same becomes~~ Notes when due and payable, whether at maturity or at any date fixed for payment or prepayment or by ~~acceleration~~ declaration or otherwise~~, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable~~; or (b) ~~Such Borrower~~ the Company shall fail to pay any interest with respect to principal outstanding hereunder, or any fee pursuant to the terms of Section 2.9, within five (5) Business Days after the date due and payable, whether at maturity or at any date fixed for payment or prepayment or by declaration or otherwise, other than due to a failure of the Administrative Agent to charge an account of the Company having a sufficient credit balance; or (c) there shall be a default in the performance of or compliance with any ~~term contained~~ covenant in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04Section 7 hereof; or (cd) ~~Such Borrower~~ the Company shall default in the performance of or compliance with any term contained herein (other than those ~~expressly~~ referred to above in this Section ~~10.01~~8), and such default shall not have been remedied within ~~five~~ thirty (530) ~~Banking~~ Business Days after ~~written notice thereof shall have been given to such Borrower by~~ the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretooccurrence thereof; or (e) ~~Any representation~~any representation or warranty made in writing by or on behalf of the Company herein, ~~warranty certification or statement made or deemed made by such Borrower~~ in ~~this Agreement~~ any other Loan Document or in connection with any ~~certificate, financial statement or other document delivered pursuant hereto~~ of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made; or (f) ~~Except as otherwise provided in this Section 10.01~~the Parent, ~~such Borrower~~ the Company or any of their respective Subsidiaries shall default (as principal or guarantor or other surety) in the payment of any ~~payment due on Indebtedness for borrowed money~~ principal or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of gracepremium, if any, ~~applicable thereto~~ of, or interest or fees on, any other Indebtedness to any Bank, or any other Indebtedness in respect of borrowed money in an aggregate principal amount of $10,000,000 or more (which default is in payment thereof at its stated maturity or shall result in such Indebtedness becoming or being declared due prior to the scheduled maturity thereof) or if the Parent, the Company or any of their respective Subsidiaries shall fail to comply (and ~~shall~~ such failure to comply has not ~~have~~ been ~~waived pursuant thereto~~ cured or waived) with any of the terms of any document evidencing any such Indebtedness or any mortgage, pledge, assignment, indenture or other document relating thereto, and ~~shall permit~~ as a consequence of any of the foregoing, the holder of such Indebtedness shall have the right to declare ~~such Indebtedness~~ all amounts payable with respect thereto to be due and payable ~~before its stated maturity, or in the performance of or compliance with any term of any evidence~~ by reason of such ~~Indebtedness~~ default prior to the scheduled maturity thereof or demand payment of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and all amounts payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of ~~such Indebtedness~~any Indebtedness payable on demand; or (g) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger~~ if the Parent, the Company or ~~consolidation~~ any of ~~such Borrower) or shall make~~ their respective Subsidiaries makes an assignment for the benefit of creditors, or ~~shall fail generally to pay its debts as such debts become due,~~ petitions or ~~shall apply~~ applies for ~~or consent to~~ the appointment of a liquidator or ~~taking possession by a trustee,~~ receiver of or ~~liquidator (or other similar official)~~ for any of such ~~Borrower~~ Persons, or of any substantial part of the ~~property~~ respective assets thereof, or ~~assets~~ commences any proceeding relating to any of such ~~Borrower~~ Persons under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or ~~shall commence a case~~ liquidation or ~~have an order for relief entered against it under the federal bankruptcy laws~~similar law of any jurisdiction, as now or hereafter ~~constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than~~ in ~~connection with a permitted merger or consolidation of such Borrower)~~effect; or (h) Ifif any such petition or application is filed or any such proceeding is commenced against the Parent, ~~within sixty (60) days after~~ the ~~commencement against~~ Company or any of their respective Subsidiaries, and any of such ~~Borrower of a case under the federal bankruptcy laws~~Persons indicates its approval thereof, ~~as now~~ consents thereto or ~~hereafter constituted~~acquiesces therein, or any ~~other applicable federal~~ such petition, application or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayedproceeding remains undischarged for thirty (30) days, or ~~if the stay of~~ an order is entered appointing any such ~~order~~ liquidator or ~~proceeding shall thereafter be set aside~~receiver, or ~~if within sixty (60) days after~~ adjudicating the ~~entry of a decree appointing a trustee~~Parent, ~~receiver or liquidator (or other similar official) of such Borrower~~ the Company or any ~~substantial part~~ of ~~the property of~~ their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such ~~Borrower such appointment shall not have been vacated~~proceeding; or (i) ~~A final judgment which~~any order is entered in any proceeding by or against the Parent, ~~together with other outstanding final judgments against such Borrower, exceeds an amount in~~ the ~~aggregate equal to five percent (5%)~~ Company or any of their respective Subsidiaries decreeing or permitting the dissolution or split-up of any of such ~~Borrower's Total Assets (exclusive~~ Persons or the winding-up of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the ~~expiration~~ affairs of any of such ~~stay, such judgment shall not have been discharged~~Persons; or (j) ~~Such Borrower~~ there shall be in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any ~~member~~ final judgment (from which all appeals have been taken and determined or as to which all time for the taking of ~~the Controlled Group shall fail to pay when due an amount or amounts aggregating~~ appeals has lapsed) in excess of $~~500,000 which it is obligated to pay to~~ 1,000,000 in the ~~PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having~~ aggregate ~~Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower~~ against the Parent, the Company or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000their respective Subsidiaries; or (k) ~~Such Borrower~~ any representation or warranty made in writing by or on behalf of the Parent in the Guaranty, in any other Loan Document or in connection with any of the transactions contemplated hereby or thereby shall prove to have been false or incorrect in any material respect on the date as of when made, or if the Parent shall default in respect of any of its obligations under the Guaranty or if the Guaranty shall cease to be ~~an investment management company~~ in full force and effect without the prior written consent of the Banks; or (~~or a Portfolio thereof~~l) ~~registered under~~ the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower,~~ Parent shall ~~lapse or be suspended; then, and in any such event, and~~ at any time ~~thereafter~~own, ~~if any Event~~ beneficially, and of ~~Default shall then be continuing with respect to such defaulting Borrower~~record, ~~(i) in the case~~ less than a majority of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of ~~which are hereby expressly waived,~~ the issued and ~~(ii) in the case~~ outstanding shares of ~~any other Event of Default specified above, either or both~~ capital stock of the ~~following actions may be taken:~~ Company having ordinary voting rights for the ~~Operations Agent may, and upon the written or telephonic (confirmed in writing) request~~ election of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationdirectors.

Appears in 1 contract

Samples: Credit Agreement (Xtra Corp /De/)

Events of Default; Acceleration. If a. The principal amount of this Note is subject to prepayment in whole or in part upon the occurrence and during the continuance of any of the following events (~~each~~ each, an ~~"EVENT OF DEFAULT") shall occur with respect to any Borrower: (a) Such Borrower~~ “Event of Default”): (i) the Company shall default in the payment of principal ~~of any Loan,~~ or interest ~~accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~on this Note, or (ii) ~~shall default in~~ the ~~payment~~ initiation of any ~~other amount due hereunder after~~ bankruptcy, insolvency, moratorium, receivership or reorganization by or against the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking DaysCompany, or ~~such Borrower shall default in the performance~~ a general assignment of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower assets by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment Company for the benefit of creditors. Upon the occurrence of any Event of Default, the entire unpaid principal balance of this Note and all of the unpaid interest accrued thereon shall be immediately due and payable. Then, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, ~~if any~~ unless cured, and in each and every such case, unless such Event of Default shall ~~then~~ have been waived in writing by the Lender (which waiver shall not be ~~continuing with respect~~ deemed to ~~such defaulting Borrower, (i~~be a waiver of any subsequent default) at the option of the Lender and in the ~~case of any Event of Default specified in paragraphs (g) and (h) above~~Lender's sole discretion, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become~~ Lender may consider this Note immediately due and ~~payable~~ payable, without presentment, demand, protest or ~~other~~ (further) notice ~~or formality~~ of any ~~kind~~kind (other than notice of acceleration), all of which are hereby expressly waived, anything herein or in any note or other instruments contained to the contrary notwithstanding, and ~~(ii) in~~ the ~~case~~ Lender may immediately, and without expiration of any period of grace, enforce any and all of the Lender's rights and remedies provided herein or any other rights or remedies afforded by law. Upon an Event of Default, interest shall accrue at a default interest rate of 16% per annum or, if such rate is usurious or not permitted by current law, then at the highest rate of interest permitted by law. The Company may offset amounts due to the Lender under this Note by similar amounts that may be due to the Company by the Lender resulting from breaches under the Lender Note. If the Lender has terminated the $52,500 Note which is begin purchased by this Note, then this Note than both Notes shall terminate and of be no effect. b. No remedy herein conferred upon the Lender is intended to be exclusive of any other ~~Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may,~~ remedy and ~~upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of~~ each and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be ~~reallocated among~~ cumulative and in addition to every other remedy hereunder, now or hereafter existing at law or in equity or otherwise. The Company accepts and agrees that this Note is a full recourse note and that the ~~remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~Holder may exercise any and all remedies available to it under law.

Appears in 1 contract

Samples: Note (AnythingIT, Inc.)

Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if the giving of notice or the lapse of time or both are required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ if the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such~~ if the Borrower shall ~~default in the performance~~ fail to pay any interest, Commitment Fees, Bankers' Acceptance Fees, Letter of Credit Fees or ~~compliance with~~ any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other ~~than those expressly referred to in this Section 10.01, and such default shall not have been remedied~~ fees within five (5) ~~Banking~~ Business Days after the same shall become due and payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (c) if the Borrower shall fail to comply with its covenants contained in (S)(S)6, 7, or 8 hereof; (d) if the Borrower shall fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b), and (c) above) within five (5) Business Days after written notice ~~thereof shall have~~ of such failure has been given to ~~such~~ Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank; (e) ~~Any representation,~~ if any representation or warranty ~~certification or statement made or deemed made by such Borrower~~ contained in this Agreement or in any ~~certificate, financial statement~~ document or ~~other document~~ instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement shall prove to have been false ~~or incorrect~~ in any material respect upon the date when ~~made; or~~made or repeated; (f) ~~Except as otherwise provided in this Section 10.01~~if the Borrower or any Subsidiary shall (i) fail to pay at maturity, ~~such Borrower shall default in~~ or within any ~~payment due on Indebtedness~~ applicable period of grace, any obligation for borrowed money or ~~the deferred purchase price of property~~(ii) fail to observe or perform any material term, ~~the aggregate outstanding principal~~ covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money in an amount ~~of which is~~ in excess of ~~five percent (5%) of~~ $250,000 for such ~~Borrower's Total Assets, and such default shall continue for more than the~~ period of ~~grace~~time as would, or would have permitted (assuming the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof; (g) ~~Such~~ if the Borrower ~~shall discontinue its business (other than in connection with a permitted merger~~ or ~~consolidation of such Borrower) or shall make~~ any Subsidiary makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become ~~due,~~ due or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such~~ the Borrower or any Subsidiary or of any substantial part of the ~~property or~~ assets of ~~such~~ the Borrower or ~~shall commence a~~ its Subsidiaries or commences any case or ~~have an~~ other proceeding relating to the Borrower or its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower or its Subsidiaries and the Borrower or its Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Borrower or any Subsidiary in an involuntary case under ~~the federal~~ Federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, and such decree or ~~any other applicable federal~~ order remains in effect for more than 30 days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orconsecutive; (i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than 30 days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged, against ~~such Borrower,~~ the Borrower and any Subsidiary exceeds ~~an amount~~ in the aggregate ~~equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days~~ $100,000 after ~~entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of~~ taking into account any ~~such stay, such judgment shall not have been discharged; or~~insurance coverage; (j) ~~Such~~ with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Bank shall have determined in its reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any ~~member~~ of ~~the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay~~ its Subsidiaries to the PBGC or the Plan in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to ~~a Plan under Title IV of ERISA~~administer such Plan; or a ~~notice of intent~~ trustee shall have been appointed by the United States District Court to ~~terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by~~ administer such ~~Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing~~Plan; or the PBGC shall ~~institute~~ have instituted proceedings ~~under Title IV of ERISA~~ to terminate ~~or to cause a trustee to be appointed to administer~~ such Plan; (k) if any ~~such Plan or Plans or a proceeding~~ of the Loan Documents shall be ~~instituted~~ cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Bank, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by ~~a fiduciary~~ or on behalf of ~~any such Plan or Plans against such~~ the Borrower or any ~~member~~ of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromits stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a ~~default~~determination that, ~~within~~ or issue a judgment, order, decree or ruling to the ~~meaning of Section 4219(c)(5) of ERISA~~effect that, ~~with respect to,~~ any one or more ~~Multiemployer Plans which could cause such Borrower or one or more members~~ of the ~~Controlled Group to incur a current payment obligation~~ Loan Documents is illegal, invalid or unenforceable in ~~excess of $500,000~~accordance with the terms thereof; or (kl) ~~Such~~ if the Borrower shall ~~cease~~ fail to ~~be an investment management company (or a Portfolio thereof) registered under~~ comply with any term of the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~EPA Consent Order; then, ~~and~~ the Bank may by notice in ~~any such event, and at any time thereafter, if any Event of Default shall then be continuing~~ writing to the Borrower declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ Note, and the other Loan Documents, and all Reimbursement Obligations to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated~~ forthwith mature and ~~the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided, that in the event of any Event of Default specified in -------- (S)(S)11(g) or 11(h) hereof, all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Bank. Upon demand by the Bank after the occurrence of any Event of Default, ~~and/or (B) terminate~~ the ~~Commitments~~ Borrower shall immediately provide to the Bank cash in an amount equal to the Cash Collateral Amount to be held by the Bank as ~~to such defaulting Borrower, whereupon~~ collateral security for the ~~Commitments~~ Obligations. In case any one or more of the ~~Banks~~ Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans pursuant to ~~make Committed Credit Loans~~ the foregoing, the Bank, if owed any amount with respect to the Loans, may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the Obligations to the Bank hereunder are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to ~~such defaulting Borrower shall forthwith terminate without~~ enforce the payment thereof or any other ~~notice~~ legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holder of the Note is intended to be exclusive of any ~~kind~~ other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit Agreement (Aerovox Inc)

Events of Default; Acceleration. If 13.1. The occurrence of any one or more of the following conditions or events ~~(each~~ shall constitute an "~~EVENT OF DEFAULT~~Event of Default"~~) shall occur with respect to any Borrower~~: (a) ~~Such Borrower (i) shall default in~~ Debtor fails to pay any principal, interest, or premium on either of the ~~payment of principal of~~ Note or any ~~Loan, interest accrued thereon~~ other obligation to Secured Party under this Agreement or ~~fee~~ any Loan Document when due ~~hereunder after the same becomes~~ and payable or declared due and payable~~, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or~~; (b) ~~Such Borrower shall default in the performance of~~ Debtor or ~~compliance with~~ Guarantor fails to perform, keep, or observe any ~~term~~ term, provision, condition, or covenant contained in ~~Sections 9.01(a)~~ this Agreement or ~~9.01(b) and such default shall have continued for more than three (3) Banking Days~~any Loan Document which is required to be performed, kept, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01observed by them, and such default shall not ~~have been remedied~~ be cured within ~~five~~ thirty (530) ~~Banking Days after~~ days of written notice ~~thereof shall have been given~~ from Secured Party to ~~such Borrower by~~ Debtor; (c) There is an event of default pursuant to either of the ~~Operations Agent; or~~Note, the Guaranty, any Security Agreement, Guarantor Security Agreements, or any other Loan Document, after the applicable grace period, if any; (d) ~~Such Borrower shall default in the performance of,~~ Any representation or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period warranty of ~~grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower~~ Debtor in this Agreement or in any ~~certificate, financial statement or~~ other ~~document delivered pursuant hereto shall prove~~ Loan Document proves to have been ~~false~~ untrue or ~~incorrect~~ misleading in any material respect when made~~; or~~; (e) A default shall occur under any agreement, guarantee, document or instrument, other than the Loan Documents, to which Debtor or Guarantor is a party or by which the Debtor is bound creating or relating to any indebtedness of Debtor, the consequences of which could have a materially adverse effect on Debtor's business or financial condition, the Collateral or Secured Party's interest therein; (f) ~~Except as otherwise provided in this Section 10.01~~Any statement, ~~such Borrower shall default~~ report, financial statement or certification made or delivered by Debtor or any officer, director, shareholder, employee, or agent of Debtor to Secured Party is not true and correct in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaterial respect; (g) ~~Such Borrower~~ There shall ~~discontinue its business~~ occur any material uninsured damage to or loss, theft, or destruction of, any of the Collateral; (h) The Collateral or any other ~~than in connection with~~ of Debtor's assets are attached, seized, levied upon, or subjected to a ~~permitted merger~~ writ or ~~consolidation~~ distress warrant, or come within the possession of ~~such Borrower)~~ any receiver, trustee, custodian, or ~~shall make an assignment~~ assignee for the benefit of creditors, ; and the same is not cured within thirty (30) days thereafter; or ~~shall fail generally to pay its debts as such debts become due, or shall apply~~ an application is made by any person other than Debtor for ~~or consent to~~ the appointment of ~~or taking possession by~~ a receiver, trustee, ~~receiver~~ or ~~liquidator (or other similar official)~~ custodian for any of ~~such Borrower or any substantial part of~~ their respective assets and the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, same is not dismissed within sixty (60) days after the ~~commencement against such Borrower~~ application therefor; (i) Debtor or Guarantor applies for the appointment of a receiver, trustee, or custodian for any of their respective assets; Debtor or Guarantor file a petition under any section or chapter of the Bankruptcy Code or any similar law or regulation; Debtor or Guarantor make an assignment for the benefit of their creditors; or Debtor file any case ~~under the federal bankruptcy laws~~or proceeding for its dissolution, liquidation or termination; (j) Debtor ceases to conduct its business as now ~~or hereafter constituted~~conducted, or ~~any other applicable federal or state bankruptcy~~is enjoined, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayedrestrained, or if in any way prevented by court order from conducting all or any material part of its business affairs, or a petition under any section or chapter of the ~~stay of~~ Bankruptcy Code, or under any ~~such order~~ similar law or regulation, is filed against Debtor or any case or proceeding ~~shall thereafter be set aside~~is filed against Debtor for its dissolution or liquidation and such injunction, restraint, or if petition is not dismissed within sixty (60) days after the entry or filing thereof; (k) A notice of lien, levy, or assessment is filed of record with respect to all or any of Debtor's assets by the United States, or any department, agency, or instrumentality thereof, including without limitation, the Pension Benefit Guaranty Corporation (in the case of Debtor), or any taxes or debts owing at the time or times hereafter to any one of the foregoing becomes a ~~decree appointing~~ lien or encumbrance upon the assets of Debtor and the same is not released within sixty (60) days after the same becomes a ~~trustee~~lien or encumbrance; (l) Guarantor files a petition under any section or chapter of the Bankruptcy Code or under any similar law or regulation, ~~receiver~~ or ~~liquidator~~ the same is filed against Guarantor and is not dismissed within sixty (60) days after the filing thereof; (m) There is an event of default under the terms of any other loan from Secured Party to Debtor, or an event of default or other ~~similar official)~~ breach under the terms of ~~such Borrower or~~ any ~~substantial part of the property of such Borrower such appointment shall not have been vacated~~other agreement, other than a Loan Document, between Secured Party and Debtor; or (in) ~~A final judgment which~~Debtor or the Guarantor shall have filed against it a lawsuit, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealproceeding, or ifadministrative action which Secured Party deems, ~~within thirty (30) days after~~ in its sole discretion, to materially and adversely affect the ~~expiration~~ condition, financial or otherwise, of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; Debtors or the ~~PBGC shall institute proceedings under Title IV~~ Guarantor. 13.2. Upon the occurrence of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of ~~Default shall then be continuing with respect to such defaulting Borrower~~Default, ~~(i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~at Secured Party's option, the ~~Commitments as to such defaulting Borrower~~ Credit Line shall ~~thereupon automatically~~ be terminated and ~~the principal of and accrued interest on the Loans shall automatically become due and payable~~ all Debtor's Obligations to Secured Party may, without ~~presentment,~~ demand, ~~protest~~ notice, or ~~other notice or formality~~ legal process of any kind, ~~all of which are hereby expressly waived~~be declared, and ~~(ii) in the case of any other Event of Default specified above~~immediately shall become, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, ~~whereupon the principal of~~ and ~~accrued interest in respect of such Loans~~ Secured Party shall ~~become forthwith due and payable without presentment, demand, protest or other notice of any kind,~~ be entitled to exercise all of ~~which are hereby expressly waived by such Borrower~~its remedies contained in the Note, ~~and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ Security Agreement or any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLoan Documents.

Appears in 1 contract

Samples: Loan Agreement (Intelligent Systems Corp)

Events of Default; Acceleration. ~~If any of the following events (each an "EVENT~~ THE FOLLOWING ARE EVENTS OF ~~DEFAULT") shall occur with respect to any Borrower~~DEFAULT UNDER THIS MASTER SECURITY AGREEMENT WHICH WILL ALLOW SECURED PARTY TO TAKE SUCH ACTION UNDER THIS PARAGRAPH 9 AND UNDER PARAGRAPH 10 AS IT DEEMS NECESSARY: (a) ~~Such Borrower~~ any of Debtor's obligations to Secured Party under any Schedule is not paid promptly when due and such payment default is not cured within 5 business days after the later of (i) the date such payment becomes due, and (ii) the date Debtor receives a statement thereof; (b) Debtor shall ~~default~~ fail to comply with the financial covenants set forth in paragraph 2 of the ~~payment~~ Financial Reports and Covenant Rider attached to this Master Security Agreement; (c) Debtor breaches (i) the provisions of ~~principal of any Loan, interest accrued thereon~~ paragraphs 6(b) or ~~fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~7(f), or (ii) ~~shall default in the payment~~ any other covenant or agreement hereof, or of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01Schedule, and the breach of such ~~default~~ other covenant or agreement shall not have been ~~remedied~~ cured within ~~five~~ 30 days after the earlier to occur of (5A) ~~Banking Days after~~ written notice ~~thereof shall have been~~ of such breach is given by Secured Party to Debtor, and (B) an officer of Debtor otherwise has actual knowledge of such ~~Borrower by the Operations Agent; or~~breach; (d) ~~Such Borrower shall default~~ any representation or warranty made by Debtor in ~~the performance of~~this Master Security Agreement, any Schedule, or ~~compliance with~~any financial statements, ~~any material term contained in any~~ certificates or other ~~written agreement with~~ documents submitted by Debtor to Secured Party pursuant to the ~~Operations Agent~~ provisions of this Master Security Agreement or any ~~Bank pertaining to this Agreement or such Borrower's Loans~~Schedule, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in ~~any certificate~~connection with Debtor's application for the loans to be made thereunder, ~~financial statement or other document delivered pursuant hereto shall prove~~ proves to have been false or ~~incorrect~~ misleading in any material ~~respect when made; or~~respect; (e) any material portion of the Collateral is lost or destroyed and (i) such Collateral is not replaced by Debtor with equipment of equal or greater value, or (ii) the indebtedness secured by the affected Collateral is not prepaid by an amount equal to the full insurable value of such Collateral, in either case within 180 days after the occurrence of any such loss or destruction; (f) ~~Except as otherwise provided~~ a complaint in ~~this Section 10.01, such Borrower shall default in~~ bankruptcy or for arrangement or reorganization or for relief under any ~~payment due on Indebtedness for borrowed money~~ insolvency law is filed by or ~~the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets~~against Debtor, and ~~such default shall continue~~ if filed against Debtor, remains undismissed and unstayed for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before 60 days; or Debtor admits its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally inability to pay its debts as ~~such debts become due,~~ they mature; or ~~shall apply for or consent~~ Debtor ceases to ~~the appointment of or taking possession by~~ do business as a ~~trustee, receiver or liquidator~~ going concern; (~~or other similar official~~g) ~~of such Borrower or~~ any ~~substantial part~~ material portion of the ~~property~~ Collateral or ~~assets~~ of ~~such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or~~ any other ~~applicable federal~~ property of Debtor is attached through legal process or ~~state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with~~ a ~~permitted merger or consolidation of such Borrower)~~receiver is appointed for Debtor; or (h) Ifa third party takes any action to foreclose on, ~~within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws~~obtain possession or control of, ~~as now~~ collect, sell or ~~hereafter constituted~~otherwise dispose of, or exercise any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, rights with respect to, ~~one or more Multiemployer Plans which could cause such Borrower or one or more members~~ any of the ~~Controlled Group~~ Collateral without the express written consent of Secured Party. If Debtor shall be in default hereunder, the indebtedness described in each Schedule and all other indebtedness then owing by Debtor to ~~incur~~ Secured Party under this Master Security Agreement (collectively, the "Indebtedness") shall, if Secured Party shall so elect, become immediately due and payable. After acceleration, the unpaid principal balance of the indebtedness described in any Schedule shall bear interest at a ~~current~~ rate per annum equal to 2% above the rate then in effect for such indebtedness until paid in full. In no event shall the Debtor, upon demand by Secured Party for payment ~~obligation~~ of the Indebtedness, by acceleration of the maturity thereof or otherwise, be obligated to pay any interest in excess of ~~$500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under~~ the ~~Investment Company Act~~amount permitted by law. Any acceleration of the Indebtedness, ~~or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower~~if elected by Secured Party, shall ~~lapse or~~ be ~~suspended; then~~subject to all applicable laws, including laws relating to rebates and ~~in any such event, and at any time thereafter, if any Event~~ refunds of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationunearned charges.

Appears in 1 contract

Samples: Master Security Agreement (Avondale Inc)

Appears in 1 contract

Samples: Revolving Credit Agreement (Grove Property Trust)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ if the Company shall default in the payment of any principal of or premium, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) if the Company shall default in the payment of any ~~other amount due hereunder~~ interest on any Note for more than five days after the same becomes due and payable; or (bc) ~~Such Borrower~~ if the Company shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~sections 10.1 through 10.8, inclusive; or (d) ~~or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower~~ if the Company shall default in the performance of or compliance with any term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ this Agreement other than those ~~expressly~~ referred to above in this ~~Section 10.01,~~ section 11 and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after such failure shall first have become known to any officer of the Company or written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with,~~ Company from any ~~material term contained in~~ holder of any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoNote; or (e) ~~Any representation,~~ if any representation or warranty ~~certification~~ made in writing by or ~~statement made or deemed made by such Borrower~~ on behalf of the Company in this Agreement or in any ~~certificate, financial statement or other document delivered pursuant hereto~~ instrument furnished in compliance with this Agreement shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any ~~payment due~~ principal of or premium or interest on ~~Indebtedness for borrowed money or the deferred purchase price of property, the aggregate~~ any Debt which is outstanding in a principal amount of at least $1,000,000 (other than the Notes), or if any event shall occur or condition shall exist in respect of any such Debt which is outstanding in ~~excess~~ a principal amount of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, at least $1,000,000 or ~~in the performance of or compliance with any term of~~ under any evidence of any such ~~Indebtedness~~ Debt or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such ~~claim having been asserted in respect~~ default, event or condition the holder or holders of such ~~Indebtedness~~Debt shall have caused the acceleration of the payment of such Debt before its regularly scheduled dates of payment; or (g) ~~Such Borrower~~ if any Guaranty Agreement shall ~~discontinue its business~~ be unenforceable or shall cease to be in full force and effect as to any Subsidiary; or (~~other than~~ h) if a final judgment or judgments shall be rendered against the Company or any Subsidiary for the payment of money in ~~connection with a permitted merger or consolidation~~ excess of $250,000 (in excess of insurance coverage) in the aggregate and any one of such ~~Borrower~~judgments shall not be discharged or execution thereon stayed pending appeal, within 60 days after entry thereof, or, in the event of such a stay, such judgment shall not be discharged within 60 days after such stay expires; or (i) if the Company or any material Subsidiary shall (i) admit in writing its inability, generally, to pay its debts as they become due, (ii) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (iii) make an assignment for the benefit of its creditors, ~~or shall fail generally to pay its debts as such debts become due, or shall apply for or~~ (iv) consent to the appointment of ~~or taking possession by~~ a ~~trustee~~custodian, ~~receiver or liquidator (~~receiver, trustee or other officer with similar ~~official) of such Borrower~~ powers with respect to it or with respect to any substantial part of its property, (v) be adjudicated insolvent or (vi) take corporate action for the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay purpose of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedforegoing; or (j) ~~Such Borrower~~ if a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company or any ~~member~~ material Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the ~~Controlled Group shall fail to pay when due an amount~~ Company or ~~amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC~~ any material Subsidiary, or ~~to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000~~ if any petition for any such relief shall be filed ~~under Title IV of ERISA by such Borrower or any member of~~ against 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 or to cause a trustee to be appointed to administer any such Plan or Plans Company or a ~~proceeding~~ material Subsidiary and such petition shall not be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, dismissed within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended60 days; then, ~~and in any such event, and at any time thereafter, if~~ (x) upon the occurrence of any Event of Default ~~shall then be continuing~~ described in subdivision (i) or (j) of this section 11 with respect to the Company (other than such ~~defaulting Borrower,~~ an Event of Default described in clause (i) of subdivision (i) or described in clause (vi) of subdivision (i) by virtue of the reference in such clause (vi) to such clause (i)), the unpaid principal amount of and accrued interest on the Notes shall automatically become due and payable or (y) upon the occurrence of any other Event of Default, any holder or holders of more than 66 2/3% in principal amount of the Notes at the time outstanding (subject to section 15.4) may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by written notice or notices to the Company, declare all the Notes to be due and payable, whereupon the Notes shall forthwith mature and become due and payable, together with interest accrued thereon; and, in the case of any Event of Default ~~specified~~ described in ~~paragraphs (g) and (h) above~~this section 11, ~~the Commitments as to such defaulting Borrower~~ there shall ~~thereupon automatically~~ also be ~~terminated and the principal of and accrued interest on the Loans shall automatically become~~ due and ~~payable~~ payable, to the extent permitted by applicable law, a premium as set forth in section 9.3, all without presentment, demand, protest or ~~other notice or formality of any kind~~notice, ~~all of~~ which are hereby ~~expressly~~ waived~~, and (ii) in~~ ; provided that during the ~~case~~ existence of ~~any other~~ an Event of Default ~~specified above~~described in subdivision (a) or (b) of this section 11, ~~either~~ then, irrespective of whether the holder or ~~both~~ holders of more than 50% in principal amount of Notes then outstanding shall have declared all the Notes to be due and payable pursuant to this section 11, any holder of the ~~following actions may be taken: the Operations Agent~~ Notes may, ~~and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~at its option, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Company, declare the ~~principal of and accrued interest in respect of~~ Notes then held by such ~~defaulting Borrower's Loans~~ holder to be ~~forthwith~~ due and payable, whereupon the ~~principal of~~ Notes then held by such holder shall forthwith mature and ~~accrued interest in respect of such Loans shall~~ become ~~forthwith~~ due and ~~payable~~ payable, together with interest accrued thereon and, to the extent permitted by applicable law, a premium as set forth in section 9.3, without presentment, demand, protest or ~~other notice of any kind~~notice, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationwaived.

Appears in 1 contract

Samples: Note and Warrant Purchase Agreement (Perma Fix Environmental Services Inc)

Events of Default; Acceleration. If The occurrence of any one or more of the following events ~~(each~~ shall constitute an ~~"EVENT OF DEFAULT")~~ “Event of Default” hereunder, and upon such Event of Default, the entire principal balance outstanding hereunder, together with all accrued interest and other amounts payable hereunder, at the election of Xxxxxx, shall ~~occur with respect~~ become immediately due and payable, without any notice to ~~any~~ Borrower: (a) ~~Such Borrower~~ Nonpayment of (i) ~~shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~principal, or (ii) ~~shall default in the payment of any~~ interest or other ~~amount due hereunder after~~ amounts when the same ~~becomes~~ shall become due and ~~payable; or~~payable hereunder and such failure continues for five (5) days after written notice to Xxxxxxxx; (b) ~~Such~~ The failure of Borrower ~~shall default in the performance of or compliance~~ to comply with any ~~term contained in Sections 9.01(a~~provision of this Note (other than payment) or ~~9.01(b) and such default shall have continued for more than three~~ any other document, instrument or agreement executed in connection with the indebtedness evidenced hereby including, without limitation, any deed of trust, security agreement or any other document executed in connection with this Note (~~3) Banking Days~~collectively, ~~or such Borrower shall default in~~ the ~~performance of or compliance with any term contained in Sections 8.02(d~~“Loan Documents”)~~, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~; (c) ~~Such~~ Borrower ~~shall default in~~ suffers a writ or warrant of attachment, garnishment, execution, or any similar process to be issued by any court against all or any material part of its assets or any part the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; orCollateral. (d) ~~Such~~ Borrower shall have materially defaulted upon or receive a notice of a material default ~~in the performance of~~under any bond, debenture, note or ~~compliance with~~other evidence of indebtedness, under any ~~material term contained in any other written agreement with the Operations Agent~~ guarantee or ~~any Bank pertaining to this Agreement or such Borrower's Loans,~~ mortgage and such ~~default shall continue for more than the period of grace~~failure continues after applicable grace period, if any, specified ~~therein and~~ in the agreement or instrument relating to such indebtedness, whether such indebtedness now exists or shall ~~not have been waived pursuant thereto; or~~hereafter be created; (e) ~~Any representation~~The cessation of Xxxxxxxx’s business, ~~warranty certification~~ dissolution, winding-up or ~~statement made~~ termination of the existence of Borrower or ~~deemed made by such Borrower in this Agreement~~ any other person or ~~in any certificate, financial statement~~ entity who is or ~~other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or~~may become liable hereunder; (f) ~~Except as otherwise provided in this Section 10.01, such~~ The making by Borrower ~~shall default in~~ or any ~~payment due on Indebtedness for borrowed money~~ other person or ~~the deferred purchase price~~ entity who is or may become liable hereunder of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of its creditors~~, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the~~ ; (g) The appointment of (or ~~taking possession by~~ application for appointment of) a ~~trustee,~~ receiver or ~~liquidator (or other similar official)~~ receiver-manager of ~~such~~ Borrower or any ~~substantial part~~ other person or entity who is or may become liable hereunder, or the involuntary filing against (which remains undismissed, undischarged or unbonded for a period of ~~the property~~ forty-five (45) days) or ~~assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~voluntary filing by Xxxxxxxx, or any other ~~applicable~~ person or entity who is or may become liable hereunder, of a petition or application for relief under U.S. federal bankruptcy law or any similar provincial, state ~~bankruptcy, insolvency~~ or ~~other similar~~ federal law, or if the issuance of any ~~action shall be taken~~ writ of garnishment, execution or attachment for service with respect to ~~dissolve~~ Borrower or ~~liquidate such~~ any person or entity who is or may become liable hereunder, or any property of Borrower ~~(other than in connection with a permitted merger~~ or ~~consolidation~~ property of ~~such Borrower); or~~any person or entity who is or may become liable hereunder; (h) ~~If, within sixty (60) days after the commencement against such~~ Borrower ~~of a case~~ transfers any right or obligation under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedthis Note without Xxxxxx’s prior written consent; or (i) ~~A final judgment which~~Any statement, ~~together with other outstanding final judgments against such Borrower, exceeds an amount~~ representation or warranty contained herein or in the ~~aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ Loan Documents shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationmaterially false.

Appears in 1 contract

Samples: Promissory Note and Security Agreement (Isoray, Inc.)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ the Borrowers shall ~~default in the payment of~~ fail to pay when due and payable any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same becomes ~~due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or~~due; (b) ~~Such Borrower~~ the Borrowers shall ~~default in~~ fail to pay interest on the ~~performance~~ Loans, or the Borrowers shall fail to pay any Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to (S)2.2(c), or any other sum due under any of ~~or compliance with any term contained in Sections 9.01(a~~the Loan Documents within two (2) ~~or 9.01(b) and such default~~ Business Days after the date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orfirst become due and payable; (c) ~~Such Borrower~~ either of the Guarantors or the Borrowers shall ~~default~~ fail to perform any term, covenant or agreement contained in ~~the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01~~(S)(S)9.1(a), 9.1(d) through (g), 9.2 and ~~such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or~~9.3; (d) ~~Such Borrower~~ the Borrowers or any of their Subsidiaries shall ~~default~~ fail to perform any other term, covenant or agreement contained in the ~~performance of, or compliance with, any material term contained in any other~~ Loan Documents within fifteen (15) days after the Agent has given written ~~agreement with~~ notice of such failure to the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBorrowers; (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrowers or ~~statement made or deemed made by such Borrower~~ any of their other Subsidiaries in ~~this Agreement~~ the Loan Documents or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made~~; or~~; (f) ~~Except as otherwise provided~~ the Borrowers or any of their Subsidiaries shall be in ~~this Section 10.01~~default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to any Bank or any affiliates of any Bank, ~~such Borrower shall default in~~ to the Seller, or to any ~~payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is~~ other Person in excess of ~~five percent (5%) of~~ $500,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or; (g) ~~Such Borrower~~ any of the Loan Documents shall ~~discontinue its business (other~~ cease to be in full force and effect or if any of the Loan Documents shall be canceled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in ~~connection~~ accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrowers or any of their Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a ~~permitted merger~~ determination that, or ~~consolidation~~ issue a judgment, order, decree or ruling to the effect that, any one or more of ~~such Borrower~~the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; (h) the Parent, the Borrowers or any of their Subsidiaries (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrowers or any of their Subsidiaries shall be unable to pay its debts as ~~such debts become due,~~ they mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment or ~~shall apply for or consent to~~ execution action against the ~~appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower~~ Borrowers or any ~~substantial part~~ of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment whichtheir Subsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ the Borrowers and their Subsidiaries exceeds ~~an amount~~ $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; oraggregate; (k) ~~Such Borrower shall cease~~ the Parent ceases to ~~be an investment management company~~ own legally or beneficially 80% or more of the voting stock of the Borrowers (or, in the event the Parent contributes 100% of the capital stock of InSolutions to SalesLink, 80% or ~~a Portfolio thereof~~more of the voting stock of SalesLink) ~~registered under~~ or more than 51% of the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that~~ voting stock of any ~~Borrower Agent~~ Subsidiary of ~~such Borrower~~the Borrowers, ~~shall lapse~~ and either of the Borrowers ceases to own legally or ~~be suspended~~beneficially 100% or more of the voting stock of any Guarantor (or, in the event the Parent contributes 100% of the capital stock of InSolution to SalesLink, SalesLink ceases to own 100% of the capital stock of InSolution); then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Borrowers declare all amounts owing with respect to this Credit Agreement, the ~~principal of~~ Notes and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents and all Reimbursement Obligations to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any -------- Event of Default specified in (S)(S)10.1(h) or 10.1(i), all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank. (i) shall occur, ~~and/or (B)~~ any unused portion of the credit hereunder shall forthwith terminate ~~the Commitments as to such defaulting Borrower, whereupon the Commitments~~ and each of the Banks shall be relieved of all further obligations to make ~~Committed Credit~~ Loans to the Borrowers and the Agent shall be relieved of all further obligations to issue, extend or renew any Letter of Credit. If any other Event of Default shall have occurred and be continuing, the Agent may and, upon the request of the Majority Banks, shall, by notice to the Borrowers, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Agent shall be relieved of all further obligations to issue, extend or renew any Letter of Credit. No termination of the credit hereunder shall relieve the Borrowers, the Guarantors or any other Subsidiaries of the Borrowers of any of the Obligations. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans pursuant to (S)10.1, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such ~~defaulting Borrower~~ Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall ~~forthwith terminate without~~ have become -- ----- due, by declaration or otherwise, proceed to enforce the payment thereof or any other ~~notice~~ legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any ~~kind~~ Note or purchaser of a Letter of Credit Participation is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law. (a) first, the payment of, or, as the case may be, the reimbursement of the Agent for or in respect of all reasonable costs, expenses, disbursements and losses which shall have been incurred or sustained by the Agent in connection with the collection of such monies by the Agent, for the exercise, protection or enforcement by the Agent of all or any of the rights, remedies, powers and privileges of the Agent under this Credit Agreement or any of the other Loan Documents or in respect of the Collateral and supports the provision of adequate indemnity to the Agent against all taxes or liens which by law shall have, or may have, priority over the rights of the Agent to such monies; (b) second, to all other Obligations in such order or preference as the Majority Banks may determine; provided, however that distributions in respect of such Obligations -------- ------- shall be made (i) pari passu among Obligations with respect to the Agent's fee payable under (S)6 and all other Obligations and (ii) Obligations owing to the Banks with respect to each type of Obligations such as interest, principal, fees and expenses, shall be made among the Banks pro rata; and provided, further, that the Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable; (c) third, upon payment and satisfaction in full or other provisions for payment in full satisfactory to the Banks and the ~~percentages~~ Agent of all of the ~~Commitment Fee~~ Obligations, to the payment of any obligations required to be paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts; and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after~~ (d) fourth, the ~~date of termination~~ excess, if any, shall be ~~reallocated among~~ returned to the ~~remaining~~ Borrowers ~~PRO RATA on the basis of the percentages set forth opposite~~ or to such ~~remaining Borrowers' names on SCHEDULE 1,~~ other Persons as ~~in effect at the time of such termination~~are entitled thereto.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ If the Borrower ~~(i)~~ shall default in the payment of any interest on and/or any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Notes when the same becomes due and payable, ~~whether at maturity or by acceleration or otherwise, or~~ and such default continues for three (ii3) ~~shall default in the payment of any other amount due hereunder after the same becomes due and payable~~Business Days; or (b) ~~Such~~ If the Borrower shall breach or default in the performance or observance of any of the provisions of Section 6.10 through Section 6.12 hereof, and such breach or default continues for twenty (20) days after written notice of such breach or default shall have been delivered to the Borrower; or (c) If the Borrower or any Subsidiary shall default in the performance of or compliance with any ~~term~~ covenant, obligation or provision contained in ~~Sections 9.01(a~~this Loan Agreement, other than those referred to above in this Section 7, and any such default shall not have been remedied (i) ~~or 9.01(b~~within ten (10) ~~and~~ days after written notice of such default shall have ~~continued for more than three (3) Banking Days~~been delivered to the Borrower, or (ii) if such default cannot be cured within such ten (10) day period, within such longer period of time as may be necessary to effect such cure, but in any event within thirty (30) days after written notice of such default shall have been delivered to the Borrower, provided that the Borrower or such Subsidiary commences to cure the particular default within such ten (10) day period and prosecutes the cure to completion with due diligence within thirty (30) days after written notice of such default shall have been delivered to the Borrower; or (d) If the Borrower or any Subsidiary shall default in the performance of or compliance with any ~~term~~ covenant, obligation or provision contained in ~~Sections 8.02(d)~~any of the other Loan Documents, ~~8.02(e)~~and such default shall not have been remedied (i) within ten (10) days after written notice of such default shall have been delivered to the Borrower, ~~8.02(g)~~or (ii) if such default cannot be cured within such ten (10) day period, ~~8.05~~within such longer period of time as may be necessary to effect such cure, ~~9.02~~but in any event within thirty (30) days after written notice of such default shall have been delivered to the Borrower, ~~9.03~~ provided that the Borrower or ~~9.04~~such Subsidiary commences to cure the particular default within such ten (10) day period and prosecutes the cure to completion with due diligence within thirty (30) days after written notice of such default shall have been delivered to the Borrower; or (ce) ~~Such~~ If any material representation or warranty made in writing by or on behalf of the Borrower or any Subsidiary herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall have been materially false or misleading or incorrect when made, and the Borrower shall have known or should have known of the falsity, misleading nature of or incorrectness of such representation or warranty when it was made, and the Borrower fails to cause such representation and warranty to cease to be materially false, misleading or incorrect within ten (10) days after written notice of such materially false, misleading or incorrect representation or warranty shall have been delivered to the Borrower; or (f) If the Borrower or any Subsidiary shall default, as principal or guarantor or other surety or otherwise, in the payment of any principal of or premium, if any, or interest on any Indebtedness in respect of borrowed money or Capital Lease Obligations or in the deferred purchase price of property which, at the time of the default in the payment thereof, has an unpaid balance in excess of Five Hundred Thousand Dollars ($500,000.00), or if the Borrower or any Subsidiary defaults in the performance of or compliance with any term ~~contained herein~~ of any evidence of such Indebtedness or of any mortgage, indenture or other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement ~~with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~relating thereto, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) ~~Such~~ If the Borrower or any Subsidiary shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar ~~official)~~ official of ~~such Borrower or~~ any substantial part of ~~the property or assets of such Borrower~~ its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action ~~shall be taken to dissolve~~ in furtherance of its dissolution or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~liquidation; or (h) If, within ~~sixty~~ thirty (6030) days after the commencement against ~~such~~ the Borrower or any Subsidiary of a case under the ~~federal bankruptcy laws~~Bankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Borrower or such ~~Borrower~~ Subsidiary shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such Borrower or~~ any substantial part of the property of ~~such~~ the Borrower or any Subsidiary, such appointment shall not have been vacated; or (i) A If a final uninsured judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower,~~ the Borrower or any Subsidiary exceeds an ~~amount in the~~ aggregate ~~equal to five percent~~ of Five Hundred Thousand Dollars (~~5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~$500,000.00) shall be rendered against ~~such~~ the Borrower or any Subsidiary and (i) if, ~~within thirty (30) days after entry thereof~~prior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, ~~within thirty (30) days~~ after the expiration of any such stay, such judgment shall not have been discharged, or (ii) the Borrower or such Subsidiary shall not have established adequate reserves on its books in respect of such final uninsurable judgment or judgments; or (j) ~~Such~~ If any Operating Lease shall be terminated by virtue of the default by the Borrower or any ~~member of~~ Subsidiary thereunder and such termination would have a Material Adverse Effect on the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower's consolidated financial condition; or (k) ~~Such~~ If Michxxx X. Xxxxxxxx xxxll cease for any reason whatsoever, including, without limitation, his death or disability, to be and continuously to perform the duties of the chief executive officer of the Borrower unless, within one hundred eighty (180) days after such cessation, a successor to Michxxx X. Xxxxxxxx xxxh demonstrated ability and experience to serve as the chief executive officer of the Borrower shall have commenced to perform the duties of the chief executive officer of the Borrower (provided, however, that if any such successor shall have been so elected and shall have commenced the performance of such duties within such period, the name of such successor shall be deemed to have been inserted in this subsection (k) in place of Michxxx X. Xxxxxxxx); (l) If any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by The Securities and Exchange Commission under said Act) of 35% or more of the outstanding Equity Interests of the Borrower; or during any period of 24 consecutive months, individuals who were members of the board of directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower; (m) If any provision of any Guaranty Agreement shall cease to be ~~an investment management company~~ in full force and effect or any Wholly-Owned Subsidiary shall so assert in writing; or (n) If, for any reason (other than the Banks' affirmative election to release or ~~a Portfolio thereof~~terminate the Liens created by the Pledge Agreement and any Supplemental Pledge Agreement) ~~registered under~~ the ~~Investment Company Act,~~ Pledge Agreement or ~~such Borrower's registration under the Investment Company Act, or that of~~ any ~~Borrower Agent of such Borrower,~~ Supplemental Pledge Agreement shall ~~lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ cease (i) to create valid and perfected first priority Liens on the collateral encumbered in favor of the ~~case~~ Agent, or (ii) to be in full force and effect or shall be declared null and void, or the validity or enforceability thereof shall be contested by the Borrower or any Subsidiary of the Borrower; (i) upon the occurrence of any Event of Default ~~specified~~ described in ~~paragraphs~~ clause (g) ~~and~~ or (h) ~~above~~of this Section 7 with respect to the Borrower or any Subsidiary, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and~~ respective unpaid principal balances of the ~~principal of and~~ Notes together with all accrued interest on thereon and all other Obligations of the ~~Loans~~ Borrower to the Banks shall automatically become immediately due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, ~~and/or~~ or (Bii) ~~terminate~~ upon the ~~Commitments as~~ occurrence of any other Event of Default referred to ~~such defaulting~~ in this Section 7, the Requisite Banks may at any time at their option, by written notice to the Borrower, ~~whereupon~~ declare the ~~Commitments~~ respective unpaid principal balances of the Notes together with all accrued interest thereon and all other Obligations of the Borrower to the Banks to ~~make Committed Credit Loans hereunder~~ be due and payable in full to ~~such defaulting Borrower shall forthwith terminate~~ the Banks, without ~~any~~ presentment, demand, protest or other ~~notice~~ requirements of any ~~kind and~~ kind, all of which are hereby waived by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBorrower.

Appears in 1 contract

Samples: Loan Agreement (Regal Cinemas Inc)

Appears in 1 contract

Samples: Note and Warrant Purchase Agreement (Eco Soil Systems Inc)

Events of Default; Acceleration. If any of the following events ~~(each an "EVENT OF DEFAULT")~~ shall occur ~~with respect to~~ and be continuing for any ~~Borrower:~~reason whatsoever (and whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or otherwise): ~~(a) Such Borrower~~ (i) ~~shall default in~~ the ~~payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default~~ Company defaults in the payment of any ~~other amount due hereunder after~~ principal of or Prepayment Premium payable with respect to any Note, in any case when the same ~~becomes~~ shall become due, either by the terms thereof or otherwise as herein provided (including if the Company fails to comply with paragraph 4B, 4C, 4F or 4G, in which case the Company will be deemed to have defaulted in the prepayment of principal and payment of Prepayment Premium, if any, with respect to the Notes that would have been due pursuant to paragraph 4B, 4C, 4F or 4G had (x) the Company complied with the notice provisions thereof and ~~payable~~(y) all holders of Notes accepted the offer of prepayment contained in any such notice); or (bii) ~~Such Borrower shall default~~ the Company defaults in the ~~performance~~ payment of ~~or compliance with~~ any ~~term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued~~ interest on any Note for more than three (3) ~~Banking Days,~~ Business Days after the date due; or ~~such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. (ciii) ~~Such Borrower shall default in~~ (a) the ~~performance~~ Company or any Subsidiary fails to pay when due (after giving effect to any applicable grace or cure period) any payment of principal of, interest on or ~~compliance~~ premium with respect to the Working Capital Facility or any ~~term contained herein~~ other Indebtedness (other than ~~those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5~~the Senior Obligations) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate having an outstanding individual principal amount ~~of which is~~ in excess of ~~five percent~~ $2,500,000 or having an outstanding aggregate principal amount in excess of $2,500,000 (5%“Other Material Indebtedness”), or (b) a breach or default of the Company or any Subsidiary occurs with respect to the Working Capital Facility or any Other Material Indebtedness (other than the Senior Obligations) and such failure continues beyond any applicable grace period if such failure to pay, breach or default entitles the requisite holders of the obligations under the Working Capital Facility, or the holder or holders (or an agent or trustee acting on their behalf) of such ~~Borrower's Total Assets~~Other Material Indebtedness, ~~and~~ as the case may be, to cause the obligations under the Working Capital Facility or such ~~default shall continue for more than~~ Other Material Indebtedness, as the ~~period of grace~~case may be, ~~if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness~~ to ~~declare such Indebtedness~~ become or to be declared due ~~and payable before~~ prior to its stated maturity, or in (c) the ~~performance~~ maturity of ~~or compliance with any term of any evidence of such Indebtedness~~ the obligations under the Working Capital Facility or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Other Material Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing is accelerated as a result of ~~such claim having been asserted in respect of such Indebtedness~~a breach or default thereunder; or (giv) ~~Such Borrower~~ any representation, warranty, certification or other written statement made by or on behalf of the Company or any of its Subsidiaries herein or in any of the other Senior Note Documents or in any written statement or certificate at any time given by such Person in writing pursuant or in connection with any Senior Note Document or the transactions contemplated hereby and thereby shall ~~discontinue~~ be untrue in any material respect on the date as of which made and, if capable of cure (it being understood that the representations and warranties made pursuant to paragraphs 9I, 9J, 9L 9R, 9S and 9U are, without limitation, not capable of cure) is not cured (including all adverse effects thereof) within ten (10) days after notice thereof from the holder of any Note; or (v) the Company or any of its ~~business~~ Subsidiaries fails to perform or comply with any term, covenant, condition or agreement contained in clause (i) or (ii) of paragraph 5A, in the final paragraph of paragraph 5A, in paragraphs 5B, 5D(a), 5E, 5H or 5K or in paragraphs 6 or 9, and such failure shall not be remedied or waived within ten (10) days after any holder of a Note providing written notice thereof to the Company or, in the case of a Default under 5(a)(vi), such failure to deliver the required notice shall not be remedied within three (3) Business Days after knowledge of a Responsible Officer); or (vi) the Company or any of its Subsidiaries fails to perform, observe or comply with (a) any term, covenant, condition or agreement contained in paragraphs 5C, 5D(i)(b), 5D(i)(c), 5D(ii), 5F, 5G, 5I or 5J and such failure shall not be remedied or waived within ten (10) days after any holder of a Note providing written notice thereof to the Company or (b) any other agreement, covenant, term or condition contained herein or in any of the other Senior Note Documents and such failure shall not be remedied or waived within thirty (30) days after any holder of a Note providing written notice thereof to the Company; or (vii) (a) any decree or order for relief in respect of the Company or any Subsidiary (other than any Subsidiary permitted to be liquidated or dissolved pursuant to this Agreement) is entered in ~~connection with~~ an involuntary case under any applicable bankruptcy, insolvency or other similar law, now or hereafter in effect, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law (herein called the “Bankruptcy Law”); or (b) the continuance of any of the following events for sixty (60) days unless dismissed, bonded or discharged: (1) an involuntary case is commenced against the Company or any of its Subsidiaries (other than any Subsidiary permitted to be liquidated or dissolved pursuant to this Agreement), under any applicable Bankruptcy Law; or (2) a receiver, liquidator, sequestrator, trustee, custodian or other fiduciary having similar powers over the Company or any Subsidiary (other than any Subsidiary permitted ~~merger~~ to be liquidated or ~~consolidation of such Borrower) or shall make an assignment for the benefit of creditors~~dissolved pursuant to this Agreement), or ~~shall fail generally~~ over all or a substantial part of their respective property, is appointed; or (viii) (a) the Company or any Subsidiary (other than any Subsidiary permitted to ~~pay its debts as such debts become due~~be liquidated or dissolved pursuant to this Agreement) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or ~~shall apply~~ consents to the entry of an order for relief in an involuntary case or ~~consent~~ to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a ~~trustee~~receiver, ~~receiver or liquidator (~~trustee or other ~~similar official) of such Borrower~~ custodian for all or ~~any~~ a substantial part of its property; or (b) the ~~property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower~~ Subsidiary (other than any Subsidiary permitted to be liquidated or dissolved pursuant to this Agreement) makes any assignment for the benefit of creditors; or (c) the board of directors of the Company or any Subsidiary (other than any Subsidiary permitted to be liquidated or dissolved pursuant to this Agreement) adopts any resolution or otherwise authorizes action to approve any of the actions referred to in ~~connection with a permitted merger or consolidation of such Borrower~~this clause (viii); or (hix) ~~If, within sixty (60) days after the commencement against such Borrower of~~ a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in~~ for the ~~aggregate equal to five percent (5%)~~ payment of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts money aggregating in excess of $~~500,000 which it is obligated~~ 2,500,000 (not adequately covered by insurance as to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5insurance company has acknowledged coverage) ~~of ERISA, with respect to,~~ are rendered against one or more ~~Multiemployer Plans which could cause such Borrower or one or more members~~ of the ~~Controlled Group~~ Company or any Subsidiary or any of their respective assets and remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days, but in any event not later than five (5) days prior to ~~incur a current payment obligation in excess~~ the date of ~~$500,000~~any proposed sale thereunder; or (kx) ~~Such Borrower shall cease~~ any of the Senior Note Documents for any reason, other than a partial or full release in accordance with the terms thereof, ceases to be ~~an investment management company (~~in full force and effect or ~~a Portfolio thereof) registered under the Investment Company Act~~is declared to be null and void, or ~~such Borrower's registration~~ any Note Party denies that it has any further liability under ~~the Investment Company Act~~any Senior Note Documents to which it is party, or ~~that~~ gives notice to such effect; or (xi) the Collateral Agent, on behalf of itself and the holders of the Notes, does not have or ceases to have a valid and perfected security interest in any portion of the Collateral (subject, as to priority, to Liens described in clauses (b), (c), (e), (g) and/or (j) of the definition of Permitted Encumbrances and subject to the perfection standards specified in the Security Agreement) other than as a result of any ~~Borrower~~ action or omission by the Collateral Agent and provided such failure shall not be remedied or waived within three (3) Business Days after any holder of a Note providing written notice thereof to the Company, or (xii) any material damage to, or loss, theft or destruction of, any Collateral (to the extent such ~~Borrower~~Collateral is not insured in accordance with paragraph 5 or, ~~shall lapse~~ if such Collateral is insured in accordance with paragraph 5, to the extent the relevant insurer is disputing coverage), or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes the cessation or substantial curtailment of revenue producing activities at any facility of the Company or any of its Subsidiaries if any such event or circumstance continues for a period of 45 days and would reasonably be ~~suspended~~expected to have a Material Adverse Effect; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. then, ~~and in any~~ (a) if such ~~event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any~~ event is an Event of Default specified in ~~paragraphs~~ clause (gi) ~~and~~ or (hii) ~~above~~of this paragraph 8A, the ~~Commitments as~~ holder of any Note (other than any Note Party or any Affiliate of any of them) may at its option, by notice in writing to the Company, declare such ~~defaulting Borrower~~ Note to be, and such Note shall thereupon ~~automatically~~ be ~~terminated~~ and ~~the principal of and accrued interest on the Loans shall automatically become~~ become, immediately due and payable ~~without presentment~~at par, ~~demand~~together with interest accrued thereon and together with the Prepayment Premium, ~~protest or other notice or formality of any kind~~if any, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice payable with respect to such ~~defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable~~Note, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable~~ without presentment, demand, protest or other notice of any ~~kind~~kind (including, without limitation, notice of intent to accelerate), all of which are hereby ~~expressly~~ waived by the Company, (b) if such ~~Borrower~~event is an Event of Default specified in clause (vii) or (viii) of this paragraph 8A, ~~and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ all of the ~~Banks~~ Notes at the time outstanding shall automatically become immediately due and payable together with interest accrued thereon and together with the Prepayment Premium, if any, with respect to ~~make Committed Credit Loans hereunder~~ each Note, without presentment, demand, protest or notice of any kind (including notice of intent to ~~such defaulting Borrower~~ accelerate and notice of acceleration of maturity), all of which are hereby waived by the Company, and (c) with respect to any event constituting an Event of Default, the Required Holders may at their option, by notice in writing to the Company, declare all of the Notes to be, and all of the Notes shall ~~forthwith terminate~~ thereupon be and become, immediately due and payable together with interest accrued thereon and together with the Prepayment Premium, if any, with respect to each Note, without ~~any~~ presentment, demand, protest or other notice of any kind (including notice of intent to accelerate and notice of acceleration of maturity), all of which are hereby waived by the Company. The Company acknowledges, and the ~~percentages~~ parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of the ~~Commitment Fee and other fees and expenses otherwise payable~~ Prepayment Premium by ~~such defaulting Borrower hereunder accruing from and after~~ the ~~date~~ Company in the event that the Notes are prepaid or are accelerated as a result of ~~termination shall be reallocated among~~ an Event of Default, is intended to provide compensation for the ~~remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time~~ deprivation of such ~~termination~~right under such circumstances.

Appears in 1 contract

Samples: Senior Secured Note Agreement (ORBCOMM Inc.)

Events of Default; Acceleration. 8.1 If any of the following events (~~each~~ an "~~EVENT OF DEFAULT~~Event of Default," or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, a "Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Borrower shall fail to make any payment of principal or interest on any Loan within five (5) Business Days after the date that such payment is due; (b) Borrower shall fail to pay any fees, overriding royalty payments or other sums due hereunder or under any Loan Document within ten (10) days after the date that any such payment is due; (c) Borrower shall fail to either (i) ~~shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~make a prepayment to EIF, or (ii) grant and convey to EIF additional collateral, in compliance with the terms of Section 2.9 of this Agreement within five (5) Business Days after the date on which Section 2.9 requires Borrower to take such action; (d) Borrower shall fail to perform any other term, covenant or agreement contained herein or in any Loan Document and such failure shall continue for thirty (30) days after written notice of such failure has been given to Borrower by EIF; (e) An event of default entitling EIF to accelerate any other loan from EIF to Borrower shall occur; (f) Any representation or warranty of Borrower in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement or any other Loan Document shall prove to have been false in any material respect upon the date when made; (g) Borrower shall default in the payment of any ~~other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance~~ principal of or ~~compliance with~~ interest on any ~~term contained in Sections 9.01(a)~~ Indebtedness aggregating $100,000 or ~~9.01(b) and such default shall have continued for~~ more ~~than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with~~ beyond any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of ~~grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification~~ grace provided with respect thereto unless the validity or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such currently be contested by Borrower ~~shall be contesting such payment or obligation~~ in good faith by appropriate proceedings ~~promptly initiated~~ and ~~diligently conducted and such~~ unless Borrower shall have set aside on its books ~~such reserves, if any,~~ adequate reserves with respect ~~thereto as are required by GAAP~~ thereto; or any other event shall occur which is specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness if the effect of such event is to cause or to permit the holder or holders of such Indebtedness to cause (assuming the giving of any notice and ~~deemed appropriate by~~ the lapse of any time period commencing on the giving of notice) such Indebtedness to become due prior to its stated maturity; (h) Borrower ~~and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or~~ shall: (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or ~~consolidation of such Borrower) or shall make an assignment for~~ consent to the ~~benefit of creditors~~appointment of, or ~~shall fail~~ the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (ii) be generally unable to pay its debts as such debts become due; (iii) make a general assignment for the benefit of its creditors; (iv) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect); (v) file a petition seeking to take advantage of any other law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (vi) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against Borrower in an involuntary case under the United States Bankruptcy Code; or (vii) take any action for the purpose of effecting any of the foregoing; (i) A proceeding or case shall ~~apply for~~ be commenced, without the application or consent to of Borrower, in any court of competent jurisdiction, seeking (i) Borrower's liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of ~~or taking possession by~~ a trustee, ~~receiver~~ receiver, custodian, liquidator or ~~liquidator (~~the like of Borrower or ~~other similar official)~~ of ~~such Borrower~~ all or any substantial part of its assets, or (iii) similar relief in respect of Borrower under any law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or the ~~property~~ composition or ~~assets~~ readjustment of its debts, and such ~~Borrower~~ proceeding or case shall ~~commence~~ continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a ~~case~~ period of sixty (60) days; or ~~have~~ an order for relief against Borrower shall be entered ~~against it~~ in an involuntary case under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ insolvency, reorganization, winding-up, composition, readjustment of debt, dissolution or ~~other~~ liquidation or similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay law of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedjurisdiction; or (j) ~~Such~~ A Change of Control of Borrower shall occur without the consent of EIF; (k) There shall remain in force, undischarged, unsatisfied or unstayed, for more than sixty (60) days, any final judgment against Borrower that, with other outstanding final judgments, undischarged, against Borrower exceeds in the aggregate $100,000; (l) Any breach of a representation, warranty, or covenant contained herein regarding any Employee Benefit Plan that, in the opinion of EIF, could subject Borrower to any tax, penalty or other liability; any Employee Benefit Plan or Multiemployer Plan shall fail to maintain the minimum funding standard required for any plan year or part thereof or extension of any amortization period is sought or granted under Section 412 of the Code; any Employee Benefit Plan or Multiemployer Plan is, shall have been, or is likely to be terminated or the subject of termination proceedings under ERISA; any Prohibited Transaction shall occur involving any Employee Benefit Plan; any Termination Event shall occur with respect to any Employee Benefit Plan; any Employee Benefit Plan shall have an Unfunded Current Liability; provided that there shall result from any such event or events the imposition of a lien upon the assets of Borrower or any ~~member~~ ERISA Affiliate, the granting of ~~the Controlled Group shall fail to pay when due an amount~~ a security interest, or ~~amounts aggregating in excess~~ a liability or a material risk of ~~$500,000 which it is obligated to pay~~ incurring a liability to the PBGC or to a Multiemployer Plan ~~under Title IV of ERISA;~~ or an Employee Benefit Plan or a ~~notice~~ trustee appointed under ERISA or a penalty under Section 4971 of ~~intent to terminate a Plan~~ the Code (or ~~Plans having aggregate Unfunded Liabilities~~ any combination thereof), which, in ~~excess~~ the opinion of ~~$500,000 shall be filed under Title IV~~ EIF, will have an adverse effect on the -49- 55 business, operations, condition (financial or otherwise) or prospects of ~~ERISA by such~~ Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; thenAffiliate. Then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ EIF may, by notice in writing to Borrower, declare all amounts owing with respect to ~~such defaulting Borrower~~this Agreement and the Notes to be, ~~(i) in the case of any Event of Default specified in paragraphs (g)~~ and ~~(h) above, the Commitments as to such defaulting Borrower~~ they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in paragraphs (h) and (i) hereof, all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from EIF. In addition, ~~and/or (B) terminate~~ upon the ~~Commitments as to such defaulting Borrower~~occurrence of an Event of Default, ~~whereupon the Commitments~~ EIF may exercise any of its rights and remedies under any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationSecurity Instruments.

Appears in 1 contract

Samples: Financing Agreement (Energy Partners LTD)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i) shall default in~~ fails to pay the ~~payment of principal of any Loan~~principal, interest ~~accrued thereon~~ or ~~fee due hereunder after~~ both under the ~~same becomes due and payable~~terms of the Note, whether at maturity or by ~~acceleration or otherwise~~acceleration, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) ~~Banking Days~~ days after the Lender has given written notice ~~thereof~~ of such failure to the Borrower; (b) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been ~~given~~ false or misleading in any material respect at the time made or deemed to ~~such Borrower by~~ have been made; (c) any of the ~~Operations Agent; or~~Loan Documents shall cease to be in full force and effect; (d) ~~Such~~ the Borrower shall ~~default~~ materially breach the agreements specified in ~~the performance of,~~ Section 5.1(e) or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or(f) hereof; (e) ~~Any representation, warranty certification or statement made or deemed made by~~ the Borrower shall materially breach any of the agreements specified in Section 5.2 hereof which breach is not cured within ten (10) days after the Lender has given written notice of such ~~Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove~~ breach to ~~have been false or incorrect in any material respect when made; or~~the Borrower; (f) ~~Except as otherwise provided in this Section 10.01, such~~ the Borrower shall ~~default~~ fail to perform any other term, covenant or agreement contained in ~~any payment due on Indebtedness for borrowed money or~~ the ~~deferred purchase price of property,~~ Loan Documents within thirty (30) days after the ~~aggregate outstanding principal amount of which is in excess of five percent (5%)~~ Lender has given written notice of such failure to the Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or; (g) ~~Such~~ the Borrower ~~shall discontinue its business~~ (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have~~ proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief ~~entered against it~~ in an involuntary case under ~~the~~ federal bankruptcy ~~laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar~~ law~~, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or~~; (h) ~~If, within sixty (60) days after~~ upon the ~~commencement against such Borrower~~ effective date of a ~~case under the federal bankruptcy laws, as now~~ sale of all or ~~hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or~~ substantially all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the ~~property~~ assets of ~~such Borrower such appointment shall not have been vacated; or~~the Borrower; (i) A the entry of any final judgment ~~which, together with other outstanding final judgments~~ or order in excess of $250,000 against ~~such Borrower, exceeds an amount~~ Borrower which is uninsured and remains unsatisfied or undischarged and in ~~the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within~~ effect for thirty (30) days after such entry ~~thereof, such judgment shall not have been discharged~~ without a stay of enforcement or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or~~execution; (j) ~~Such Borrower~~ the occurrence of an event of default under any other agreement or ~~any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating~~ instrument evidencing indebtedness for borrowed money in excess of $500,000 ~~which it is obligated to pay to the PBGC~~ executed or ~~to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA~~ delivered by ~~such~~ Borrower or ~~any member of the Controlled Group, any plan administrator~~ pursuant to which agreement or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such instrument Borrower or ~~any member of the Controlled Group to enforce Sections 515~~ its properties is or ~~4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would~~ may be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000bound; or (k) ~~Such Borrower shall cease to be an investment management company (~~the occurrence of any event or condition which has had a ~~Portfolio thereof) registered under the Investment Company Act~~Material Adverse Effect. THEN, or ~~such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and~~ at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clause (~~g) and (h) above~~f), the ~~Commitments as to such defaulting Borrower~~ Commitment shall ~~thereupon~~ automatically ~~be terminated~~ terminate, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereon, and all other amounts payable thereunder and under the ~~Loans~~ Note shall automatically become forthwith due and payable ~~without presentment, demand, protest or other notice or formality~~ in accordance with the terms of ~~any kind, all of which are hereby expressly waived, and~~ the Note; (ii2) in In the case of any ~~other~~ Event of Default ~~specified above~~other than (f), ~~either or both of~~ the ~~following actions may be taken: the Operations Agent~~ Lender may~~, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~, by written notice to ~~such defaulting Borrower (A)~~ the Borrower, terminate the Commitment and upon any Event of Default the Lender may, without further notice, declare the unpaid principal amount of the Loans, all interest accrued and ~~accrued interest in respect of such defaulting Borrower's Loans~~ unpaid thereon, and all other amounts payable hereunder and under the Note to be forthwith due and ~~payable~~payable in accordance with the terms of the Note, ~~whereupon~~ and may exercise any and all remedies available at law, in equity or under any of the ~~principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice~~ Loan Documents. No remedy herein conferred upon the Lender is intended to be exclusive of any ~~kind~~other remedy and each and every remedy shall be cumulative and in addition to every other remedy hereunder, ~~all~~ now or hereafter existing at law or in equity or otherwise. No course of ~~which are hereby expressly waived by such Borrower, and/or (B) terminate~~ dealing between the ~~Commitments~~ Borrower and the Lender or any failure or delay on the Lender's part in exercising any rights or remedies hereunder shall operate as ~~to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice~~ a waiver of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationrights or remedies.

Appears in 1 contract

Samples: Credit Agreement (Shepherd Surveillance Solutions Inc)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following events of default (~~each~~ each, an "~~EVENT OF DEFAULT~~event of default") shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) ~~Such Borrower (i) shall~~ failure by the Corporation to pay when due any amount required to be paid under this Participation Agreement or the Corporation Note, which failure causes a default in the payment when due of ~~principal~~ the interest on any of the Bonds and continuance of such default for five Business Days; (b) failure by the Corporation to pay when due any ~~Loan~~amount required to be paid under this Participation Agreement or the Corporation Note, ~~interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall~~ which failure causes a default in the payment when due of ~~any other amount due hereunder after~~ the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such ~~Borrower~~ failure by the Corporation shall ~~default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~continue for five Business Days; or (c) ~~Such Borrower shall default~~ failure on the part of the Corporation duly to observe or perform any other of the covenants or agreements on the part of the Corporation contained in this Participation Agreement (other than failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in the ~~performance~~ Corporation Note for a period of ~~or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days~~ 90 days after the date on which written notice ~~thereof~~ of such failure, requiring the Corporation to remedy the same, shall have been given to ~~such Borrower~~ the Corporation by the ~~Operations Agent~~Authority or the Trustee, provided, however, that, if such failure is such that it cannot be corrected within such 90-day period, it shall not constitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period an Act of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCorporation; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then be continuing~~ the Trustee with ~~respect to such defaulting Borrower, (i) in~~ the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both consent of the ~~following actions may be taken: the Operations Agent~~ Bond Insurer, may, and upon the written ~~or telephonic (confirmed in writing)~~ request of the ~~Majority Banks~~ Bond Insurer or the owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, by notice in writing to the Corporation and the Bond Insurer and provided that the default has not theretofore been cured, declare the Corporation Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Corporation Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Corporation Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Corporation Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Corporation Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such ~~defaulting Borrower~~ declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Bond Insurer (Aif not in default) ~~declare~~ shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Corporation Note as described in this Participation Agreement, and ~~accrued interest~~ (ii) the right to rescind any declaration of acceleration, and the Bond Insurer shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Corporation Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in ~~respect~~ every such case the Corporation, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Authority and the Trustee shall continue as though no such ~~defaulting Borrower's Loans to be forthwith due and payable, whereupon~~ proceedings had been taken. In the ~~principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice~~ event of any ~~kind~~Act of Bankruptcy, reorganization or liquidation, the Bond Insurer shall have the right to vote on behalf of all ~~of which are hereby expressly waived~~ Bondholders absent a default by ~~such Borrower, and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon~~ Bond Insurer under the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.

Appears in 1 contract

Samples: Participation Agreement (Ch Energy Group Inc)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following events of default (~~each~~ each, an "~~EVENT OF DEFAULT~~event of default") shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) ~~Such Borrower (i) shall~~ failure by the Corporation to pay when due any amount required to be paid under this Participation Agreement or the Corporation Note, which failure causes a default in the payment when due of ~~principal~~ the interest on any of the Bonds and continuance of such default for five Business Days; (b) failure by the Corporation to pay when due any ~~Loan~~amount required to be paid under this Participation Agreement or the Corporation Note, ~~interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall~~ which failure causes a default in the payment when due of ~~any other amount due hereunder after~~ the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such ~~Borrower~~ failure by the Corporation shall ~~default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~continue for five Business Days; or (c) ~~Such Borrower shall~~ failure by the Corporation to pay when due any amount required to be paid under Section 4.11, which failure causes a default in the ~~performance~~ payment when due of any amount payable pursuant to Article V of the Indenture; (d) failure on the part of the Corporation duly to observe or ~~compliance with~~ perform any ~~term~~ other of the covenants or agreements on the part of the Corporation contained ~~herein~~ in this Participation Agreement (other than ~~those expressly referred~~ failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in ~~this Section 10.01, and such default shall not have been remedied within five (5) Banking Days~~ the Corporation Note for a period of 90 days after the date on which written notice ~~thereof~~ of such failure, requiring the Corporation to remedy the same, shall have been given to ~~such Borrower~~ the Corporation by the ~~Operations Agent; or (d) Such Borrower shall default in~~ Authority or the ~~performance of~~Trustee, ~~or compliance with~~provided, ~~any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~however, ~~and such default shall continue for more than the period of grace~~that, if ~~any~~such failure is such that it cannot be corrected within such 90-day period, ~~specified therein and~~ it shall not ~~have been waived pursuant thereto~~constitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price an Act of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCorporation; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then be continuing~~ the Trustee with ~~respect to such defaulting Borrower, (i) in~~ the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both consent of the ~~following actions may be taken: the Operations Agent~~ Bond Insurer, may, and upon the written ~~or telephonic (confirmed in writing)~~ request of the ~~Majority Banks~~ Bond Insurer or the owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, by notice in writing to the Corporation and the Bond Insurer and provided that the default has not theretofore been cured, declare the Corporation Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Corporation Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Corporation Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Corporation Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Corporation Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such ~~defaulting Borrower~~ declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Bond Insurer (Aif not in default) ~~declare~~ shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Corporation Note as described in this Participation Agreement, and ~~accrued interest~~ (ii) the right to rescind any declaration of acceleration, and the Bond Insurer shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Corporation Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in ~~respect~~ every such case the Corporation, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Authority and the Trustee shall continue as though no such ~~defaulting Borrower's Loans to be forthwith due and payable, whereupon~~ proceedings had been taken. In the ~~principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice~~ event of any ~~kind~~Act of Bankruptcy, reorganization or liquidation, the Bond Insurer shall have the right to vote on behalf of all ~~of which are hereby expressly waived~~ Bondholders absent a default by ~~such Borrower, and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon~~ Bond Insurer under the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.

Appears in 1 contract

Samples: Participation Agreement (Ch Energy Group Inc)

Events of Default; Acceleration. ~~If any~~ 9.1 The following will each constitute an “Event of ~~the following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower~~Default”: 9.1.1 Seller shall: (i) (a) ~~Such Borrower (i) shall~~ default in the payment ~~of principal~~ when due of any ~~Loan~~Repurchase Price, ~~interest accrued thereon~~ Aged Transaction Prepayment Amount, Price Differential, or ~~fee~~ Margin Deficit when due, but excluding amounts described in clause (b) of the definition of Repurchase Price; provided, however, if Seller fails to make any such payment when due ~~hereunder~~ as a direct result of a wire transfer problem or an operational or administrative error or omission (so long as the funds required to make such payment were otherwise available to be paid), an Event of Default shall not occur pursuant to this Section 9.1.1 so long as the payment is made within one (1) Business Day after the ~~same becomes due~~ failure occurs and ~~payable, whether at maturity or by acceleration or otherwise~~Seller certifies and reasonably demonstrates to Buyer’s satisfaction that an event described above has occurred, or (iib) ~~shall~~ default in the payment of any other ~~amount~~ Obligation and such default continues for three (3) Business Days beyond the date when payment was due ~~hereunder after~~ and payable; (ii) fail to transfer the ~~same becomes~~ Purchased Mortgage Loans to Buyer on the applicable Purchase Date (provided that Buyer has tendered the related Purchase Price); provided, however, that if on any Purchase Date the number of Purchased Mortgage Loans that Seller fails to transfer to Buyer is less than three (3), Seller shall have one (1) Business Day to cure such failure; (iii) fail to pay any other sum which has become due on the due date, and such failure continues for one (1) Business Day beyond the date when payment was due and payable; or (iv) fail to (a) repurchase the Purchased Mortgage Loans on the applicable Repurchase Date, or (b) ~~Such Borrower shall~~ repurchase Purchased Mortgage Loans pursuant to Section 2.6 hereof or when otherwise required hereunder. 9.1.2 Seller’s failure to comply with the covenants described in (x) Section 7.1 (Financial Statements and Other Reporting Requirements), 7.3 (Maintenance and Insurance), 7.11 (Bank Accounts), 7.19 (Financial Covenants), 8.2 (Merger and Acquisitions; Asset Sales), 8.5 (Restrictions on Liens), 8.6 (Restricted Payments), 8.9 (Anti-Money Laundering/International Trade Law Compliance), 8.11 (No Plan Assets), or 8.12 (ERISA Compliance) hereof, or (y) Section 8.12 (ERISA Compliance) hereof, if, solely with respect to this clause (y), such failure to comply is not cured within one (1) Business Day; 9.1.3 default in the performance or observance of or compliance with ~~any term contained in Sections 9.01(a) or 9.01(b)~~ Seller’s agreements and ~~such default shall have continued for more than three (3) Banking Days, or such Borrower shall default~~ covenants set forth in the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~ Repurchase Documents (~~c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ other than those ~~expressly referred to~~ described in ~~this Section 10.01~~Sections 9.1.1 and 9.1.2 hereof), and such default ~~shall~~ continues for more than five (5) Business Days after the earlier of Seller’s knowledge thereof or notice to Seller from Buyer; 9.1.4 any representation or warranty at any time made by or on behalf of Seller, an Affiliated Originator, or Guarantor in any Repurchase Document is untrue or otherwise is or becomes false or misleading in any material respect and such violation has not ~~have~~ been ~~remedied~~ cured within five (5) ~~Banking~~ Business Days ~~after written~~ following (a) the date notice ~~thereof~~ of such violation shall have been given to such ~~Borrower~~ Person or (b) the date upon which such Person obtained knowledge of such failure; provided that the representations and warranties set forth on Exhibit D hereto shall be considered solely for the purpose of determining whether a Purchased Mortgage Loan is an Eligible Mortgage Loan (unless (A) Seller or Guarantor shall have made any such representations and warranties with actual knowledge that they were materially false or misleading at the time made or (B) any such representations and warranties have been determined by ~~the Operations Agent; or~~Buyer in its sole discretion to be materially false or misleading on a regular basis); ~~(d) Such Borrower shall default in the performance of~~9.1.5 Seller, any of Seller’s Subsidiaries, or ~~compliance with,~~ Guarantor will be in default or breach of any ~~material term contained~~ Indebtedness exceeding in ~~any other written agreement with~~ excess of the ~~Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans,~~ Indebtedness Limit and such default or breach continues uncured or unwaived beyond any applicable grace or cure period; 9.1.6 issuance of any injunctions that have a Material Adverse Effect, or issuance of any attachments that in the aggregate exceed $1,000,000 in value, against Seller, any of Seller’s Subsidiaries, or Guarantor that are not dismissed or bonded to Buyer’s satisfaction within forty-five (45) days after issuance; 9.1.7 Insolvency of Seller, any of Seller’s Subsidiaries, or Guarantor; 9.1.8 any money judgments aggregating in excess of the Judgment Threshold are entered against Seller, any of Seller’s Subsidiaries, or Guarantor which has or have become non-appealable and shall ~~continue~~ remain undischarged, unsatisfied by insurance, and unstayed for more than forty-five (45) days, whether or not consecutive; 9.1.9 for any reason (i) Seller (or an Affiliate thereof) shall contest the ~~period~~ validity, enforceability, perfection, or priority of ~~grace~~any Lien granted pursuant to the Repurchase Documents, ~~if any~~(ii) any Person (other than Buyer) contests the validity, ~~specified therein~~ enforceability, perfection, or priority of any Lien granted pursuant thereto and Seller fails to take commercially reasonable actions against such contesting Person, or (iii) Seller or any Affiliate thereof shall seek to disaffirm, terminate, limit, challenge, repudiate, or reduce its obligations under any Repurchase Document; 9.1.10 any garnishment, levy, or execution is issued and served upon Buyer, which garnishment, levy, or execution covers any material portion of property of Seller, any of Seller’s Subsidiaries, or Guarantor in Buyer’s possession and such proceeding has not ~~have~~ been ~~waived pursuant thereto; or~~dismissed within sixty (60) days; (ea) ~~Any representation~~any Repurchase Document or any covenant, ~~warranty certification~~ agreement, or ~~statement made~~ obligation contained therein or ~~deemed made by such Borrower in this Agreement or in any certificate~~evidenced thereby, ~~financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect~~ will cease in any material respect ~~when made~~to be legal, valid, binding, or enforceable in accordance with its terms, or will be cancelled, terminated, revoked, or rescinded other than in accordance with the terms hereof or thereof, (b) any action at law, suit in equity, or other legal proceeding to cancel, revoke, or rescind any Repurchase Document will be commenced by or on behalf of Seller or any of Seller’s Subsidiaries, or (c) any court or any other governmental or regulatory authority or agency of competent jurisdiction will make a determination that, or will issue a judgment, order, decree, or ruling to the effect that, any one or more of the (x) Repurchase Documents or (y) obligations of Seller or any of Seller’s Subsidiaries, in any case, thereunder, are illegal, invalid, or unenforceable in any material respect in accordance with the terms thereof; 9.1.12 the Liens granted by Seller, an Affiliated Originator, or any Subsidiary under the Repurchase Documents will cease to be valid, first priority security interests (subject only to Permitted Liens) or will fail to be perfected, or any Person will successfully contest the validity, priority, enforceability, or perfection of such security interests; 9.1.13 the occurrence of any event or condition that Buyer determines could have a Material Adverse Effect (other than with respect to clause (d) in the definition thereof); 9.1.14 if any Governmental Entity institutes a regulatory enforcement action against Seller or Guarantor and such action is not dismissed within fifteen (15) Business Days; 9.1.15 reserved; 9.1.16 the occurrence or existence of any default or event of default caused by Seller or Guarantor and not promptly cured under any other Repurchase Document; or 9.1.17 the occurrence of a Change of Control which has not received Buyer’s prior written approval. 9.2 If an Event of Default occurs and is continuing, Buyer may, at its option (~~f) Except as otherwise provided in this Section 10.01, such Borrower shall default in~~ and will be automatically deemed to have done so without any ~~payment due~~ further action on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its ~~stated maturity, or~~ part in the ~~performance~~ case of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no an Event of Default pursuant to ~~paragraphs (b~~Section 9.1.7 hereof) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, do one or more ~~Multiemployer Plans which could cause such Borrower or one or more members~~ of the ~~Controlled Group~~ following: (a) declare any or all of the Obligations, including any or all of the Repurchase Prices related to ~~incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease~~ outstanding Transactions, to be ~~an investment management company (or a Portfolio thereof) registered under~~ immediately due and payable, whereupon the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically same will become immediately due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other further notice of any kind, all of which are hereby ~~expressly~~ waived by Seller, (b) limit, suspend, or terminate Seller’s ability to enter into Transactions hereunder and/or terminate this Agreement, and (c) exercise any rights and remedies under the Repurchase Documents and applicable law. 9.3 Without limiting the foregoing, upon the occurrence of any Event of Default and at any time thereafter during the continuation thereof, Buyer will have the right to take immediate possession of the Purchased Assets, and for that purpose Buyer may, so far as Seller can give authority therefor, enter upon any premises on which Purchased Assets may be situated and remove the same therefrom. Seller waives demand and notice with respect to and assent to any repossession of Purchased Assets. Buyer may dispose of Purchased Assets in any order and in any manner that Xxxxx chooses and may refrain from the sale of any real property held as Purchased Assets until the sale of personal property. Except with respect to any Purchased Asset that is perishable, threatens to decline speedily in value, or that is of a type customarily sold on a recognized market, Buyer will give Seller at least five (5) Business Days’ prior written notice of the time and place of any public sale of Purchased Assets or of the time after which any private sale or any other intended disposition is to be made. Any remaining proceeds of such ~~Borrower~~collection or sale, ~~and/or~~ after satisfying all Obligations in such order of preference as Buyer may determine and making proper allowance for interest on Obligations not then due, if any, will be credited to any deposit account that Seller may maintain with Buyer or, if there is no such account, held pending Seller’s instructions. Seller will remain liable for any deficiency. 9.4 Upon the occurrence and during the continuation of an Event of Default, Buyer may at any time in its sole discretion (Ba) ~~terminate~~ transfer any securities or other property constituting Purchased Assets into Buyer’s own name or that of Buyer’s nominee and receive the ~~Commitments~~ income thereon and hold the same as security for Obligations or apply it on amounts due on Obligations, (b) without notice to or demand on Seller, demand and collect Purchased Assets consisting of accounts receivable or instruments as Buyer may determine, and (c) for the purpose of realizing Buyer’s rights therein, receive, open, and dispose of mail addressed to Seller and endorse notes, checks, drafts, money orders, documents of title, or other evidences of payment, shipment, or storage or any form of Purchased Assets on behalf of and in the name of Seller. The powers conferred on Buyer by this Section 9 are solely to protect Xxxxx and will not impose any duties on Buyer to exercise any powers. 9.5 In addition to all other rights and remedies provided hereunder or by law, Xxxxx will have, in any jurisdiction where enforcement hereof is sought, the rights and remedies of a secured party under the UCC. 9.6 Without limiting any of the foregoing, upon the occurrence and during the continuation of an Event of Default: (a) Buyer may require (i) any mortgagor under any Purchased Mortgage Loan, (ii) any maker of any Mortgage Note, and (iii) any other person obligated on any Mortgage Document or item of Purchased Assets to make payments and deliver other monies with respect to the Purchased Mortgage Loans or other items of Purchased Assets directly to Buyer, and Buyer shall be entitled to deduct reasonable expenses incurred in connection with the realization from such collections, whether administered by Buyer, any Custodian, or other agent for Buyer, and Seller shall be liable for any deficiency. (b) Buyer may retain all of the Purchased Mortgage Loans and other items of Purchased Assets in satisfaction of the unpaid Obligations. (c) All cash, proceeds, and instruments received by Seller on account of any Purchase Commitment or as a result of the sale or other disposition of the Purchased Assets, whether received by Seller in the exercise of its collection rights or otherwise, shall be remitted to the Custodian or Buyer, as applicable, in the form received (properly endorsed to the order of the Custodian or Buyer) not later than the Business Day following the day of receipt, to be held as security for (or, at Buyer’s option, to be applied toward) the payment of the Obligations. Seller shall not commingle any such collections or proceeds following with any of its other funds or property and shall hold the same under an express trust for the benefit of Buyer until remitted to Buyer or the Custodian. (d) Upon the completion of any sale or other disposition of Purchased Mortgage Loans or other items of Purchased Assets under this Section 9, full title and right of possession to such ~~defaulting Borrower~~Purchased Mortgage Loans and other items of Purchased Assets shall pass to the purchaser of such Purchased Assets; provided, ~~whereupon~~ however, that if Buyer or any such purchaser so requests, Seller shall confirm any such sale or transfer by executing and delivering to such purchaser all instruments of conveyance, assignment, and transfer and releases reasonably requested to divest all right, title, and interest of Seller in and to the ~~Commitments~~ sold Purchased Assets. (e) Neither Seller nor anyone claiming through Seller shall claim, seek, or take advantage of any appraisement, valuation, stay, extension, or redemption law in order to prevent, hinder, or delay the enforcement of this Agreement, the foreclosure of the ~~Banks~~ back up security interest granted pursuant to ~~make Committed Credit~~ this Agreement, or the absolute sale or other disposition of Purchased Mortgage Loans ~~hereunder~~ or other items of Purchased Assets. Immediately after such sale or other disposition, the purchaser or Buyer shall be entitled to notify all obligors on the Purchased Assets that Seller’s interest in such property has been assigned to such ~~defaulting Borrower shall forthwith terminate without~~ purchaser or Buyer, as the case may be, and that all payments on or in respect of such Purchased Assets are to be made directly to such purchaser or Buyer, as applicable, or any other ~~notice~~ specified person or entity. (f) Seller shall execute any and all documents and provide any information, documents, or records necessary to carry out any of Xxxxx’s remedies. (g) No funds received by Buyer pursuant to this Section 9 need be segregated in any manner except to the extent required by law, and any such funds may be deposited in a noninterest-bearing account held by Buyer under such general conditions as are permitted under applicable law. (h) In connection with the exercise of its rights pursuant to this Section 9, Buyer may, but shall be under no duty to, collect, receipt for, settle, compromise, adjust, sue for, foreclose, or realize upon the Purchased Mortgage Loans or other items of Purchased Assets, in its own name or in Seller’s name, as Buyer in its sole discretion may determine; provided that Buyer shall not be liable for (i) the failure to collect any payment of interest or principal on any Purchased Mortgage Loan, (ii) the failure to enforce any contract right, or (iii) any act or omission (other than Buyer’s gross negligence or willful misconduct) in connection with the collection of any ~~kind and~~ payment of interest or principal on any Purchased Mortgage Loan or the ~~percentages~~ enforcement of ~~the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ any contract right. (i) It shall be ~~reallocated among~~ deemed commercially reasonable if Buyer proceeds in the ~~remaining Borrowers PRO RATA on~~ manner described in this Section 9; provided, however, that such procedures are not intended to be the ~~basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~only commercially reasonable method in which Buyer may exercise its remedies, as and Buyer may proceed in ~~effect at the time of such termination~~any other commercially reasonable manner permitted under applicable law.

Appears in 1 contract

Samples: Master Repurchase Agreement (Radian Group Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or if either or both notice or lapse of time is required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Company or any Borrowing Subsidiary shall default in ~~the~~ any payment of any principal ~~of any Loan, interest accrued thereon~~ amount outstanding hereunder or ~~fee due hereunder after~~ under the Notes when the same ~~becomes~~ shall become due and payable, whether at maturity or at any date fixed for payment or prepayment or by ~~acceleration~~ declaration or ~~otherwise,~~ otherwise other than due to a failure of a Bank or ~~(ii) shall default in~~ the ~~payment~~ Agent to charge an account of ~~any other amount due hereunder after~~ the ~~same becomes due and payable~~Company or such Borrowing Subsidiary having a sufficient credit balance; or (b) ~~Such Borrower~~ if the Company or any Borrowing Subsidiary shall ~~default in~~ fail to pay any interest with respect to principal outstanding hereunder or under the ~~performance of~~ Notes or ~~compliance with~~ any ~~term contained in Sections 9.01(a~~commitment fee within two (2) ~~or 9.01(b) and such default~~ Business Days after written notice by the Agent thereof shall have ~~continued~~ been given to the Company whether at maturity or at any date fixed for ~~more than three (3) Banking Days,~~ payment or ~~such Borrower shall default in the performance of~~ prepayment or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ by declaration or ~~9.04~~otherwise; or (c) ~~Such Borrower~~ if the Company or any Borrowing Subsidiary shall default in any material respect in the performance of or compliance with any term contained herein ~~other than those expressly referred to in this Section 10.01,~~ and such default shall not have been remedied within ~~five (5) Banking Days~~ 15 days after written notice thereof shall have been given to the Company or such ~~Borrower~~ Borrowing Subsidiary by the ~~Operations~~ Agent; or (d) ~~Such Borrower shall default~~ if any representation or warranty made in writing by or on behalf of the ~~performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent~~ Company or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement Borrowing Subsidiary herein or in connection with any ~~certificate, financial statement or other document delivered pursuant hereto~~ of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made or deemed made; or (e) if the Company or any Subsidiary shall fail to pay at maturity, or within any applicable period of grace, any obligation for money borrowed or credit advanced in an amount in excess of $250,000 in any one case or in aggregate for all obligations in default at such time, or shall have received notice of the existence of a default resulting from its failure to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such money borrowed or credit advanced, and such default shall continue without waiver thereof beyond any period of grace provided with respect thereto; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower shall default in~~ if any ~~payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such~~ Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in any Subsidiary owning assets having a fair market value of $250,000 or more, shall make a general assignment for the ~~performance~~ benefit of creditors or ~~compliance with any term~~ shall petition or apply for the appointment of a liquidator or receiver of any ~~evidence of~~ Borrower or any such ~~Indebtedness~~ Subsidiary or of any ~~mortgage, indenture~~ substantial part of the assets of any Borrower or ~~other agreement relating thereto, and~~ any such ~~default~~ Subsidiary or shall ~~continue for more than the period~~ commence any proceeding relating to any Borrower under any bankruptcy, reorganization, insolvency, readjustment of ~~grace~~debt, ~~if any~~dissolution or liquidation law or similar law of any jurisdiction, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment now or ~~obligation~~ hereafter in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesseffect; or (g) ~~Such Borrower~~ if any such petition or application shall ~~discontinue its business (other than in connection with a permitted merger~~ be filed or ~~consolidation of~~ any such proceeding shall be commenced against any Borrower~~) or shall make an assignment for the benefit of creditors~~, or ~~shall fail generally to pay its debts as such debts become due~~any Subsidiary owning assets having a fair market value of $250,000 or more, ~~or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of~~ and such Borrower or such Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or an order shall be entered appointing any ~~substantial part of the property~~ liquidator or ~~assets of such~~ receiver, or adjudicating any Borrower or ~~shall commence~~ any such Subsidiary a ~~case~~ bankrupt or ~~have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~insolvent, or approving a petition in any ~~other applicable federal~~ such proceeding, and such order shall remain in effect for more than thirty days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)not consecutive; or (h) ~~If, within sixty (60) days after the commencement~~ if any order shall be entered in any proceeding by or against ~~such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or~~ any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any ~~substantial part~~ Subsidiary decreeing or permitting the dissolution or split-up of any Borrower or such Subsidiary or the ~~property~~ winding up of its affairs and such ~~Borrower such appointment~~ order shall remain in effect for more than thirty days, whether or not ~~have been vacated~~consecutive; or (i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days after the date on which payment is due thereon, whether or not consecutive, any final judgment against any Borrower or any Subsidiary which, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged, against ~~such Borrower,~~ the Company and its Subsidiaries exceeds ~~an amount~~ in the aggregate ~~equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days~~ $250,000 after ~~entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of~~ taking into account any ~~such stay, such judgment shall not have been discharged~~insurance coverage; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such ~~event, and~~ event the Agent may at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent maytime, and upon ~~the~~ written ~~or telephonic (confirmed in writing)~~ request of the Majority ~~Banks~~ Banks, shall, by written notice to the Borrower, and if the Borrower is a Borrowing Subsidiary, the Company, declare: (i) the obligation of each Bank to make Advances or Term Loans to the Borrowers to be terminated, whereupon the same shall terminate, and/or (ii) the right of any Subsidiary to become a Borrowing Subsidiary and the obligation of each Bank to make Advances or Term Loans to such ~~defaulting Borrower~~ Subsidiary to be terminated, whereupon the same shall forthwith terminate, and/or (Aiii) ~~declare~~ the principal amount of the Loan Accounts, in the case of the Company and ~~accrued~~ the Notes, in the case of all other Borrowers, all interest ~~in respect of such defaulting Borrower's Loans~~ thereon and all other amounts payable under this Agreement and the Notes to be forthwith due and payable, whereupon the ~~principal of and accrued interest in respect of such Loans~~ same shall become and be forthwith due and payable without presentment, demand, protest or ~~other notice of any kind~~notice, all of which are hereby expressly waived by ~~such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ each of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ Borrowers. If any ~~other notice of any kind and the percentages~~ of the ~~Commitment Fee~~ events described in clauses (f), (g) or (h) above shall occur, and ~~other fees~~ if such event involves the Company (rather than a Subsidiary), the actions described in clauses (i), (ii) and ~~expenses otherwise payable~~ (iii) above shall occur automatically without requests by ~~such defaulting Borrower hereunder accruing from and after~~ the ~~date of termination shall be reallocated among~~ Banks, notice to the ~~remaining Borrowers PRO RATA on~~ Company, or declaration by the ~~basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~Agent.

Appears in 1 contract

Samples: Multicurrency Revolving Credit and Term Loan Agreement (Teradyne Inc)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower:~~and be continuing (a) ~~Such Borrower (i)~~ the Obligors shall default in the payment of any principal of or Make Whole Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) the Obligors shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or (bc) ~~Such Borrower~~ the Obligors shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~Section 7(h) or ~~9.01(b~~any of Sections 10.1 through 10.8, inclusive and Section 10.10(b); or (d) ~~and such default shall have continued for more than three (3) Banking Days~~either Obligor, the general partner of Star Gas, the Public Partnership or ~~such Borrower~~ any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after such default shall first have become known to any officer of such Person or written notice thereof shall have been ~~given to such Borrower~~ received by either Obligor or the ~~Operations Agent~~general partner of Star Gas; or (de) ~~Such Borrower~~ any representation or warranty made in writing by or on behalf of either Obligor or any of their Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or (f) either Obligor or any Restricted Subsidiary (as principal or guarantor or other surety) shall default in the ~~performance of~~payment of any amount of principal of or premium or interest on the Bank Credit Facilities, or ~~compliance with, any material term contained~~ other Indebtedness which is outstanding in ~~any~~ a principal amount of at least $2,000,000 in the aggregate (other ~~written agreement with~~ than the ~~Operations Agent~~ Notes); or any event shall occur or condition shall exist in respect of the Bank ~~pertaining~~ Credit Facilities, or other Indebtedness which is outstanding in a principal amount of at least $2,000,000 or under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating to ~~this Agreement~~ the Bank Credit Facilities or such ~~Borrower's Loans~~other Indebtedness the effect of which is to cause (or to permit one or more Persons to cause) such Bank Credit Facilities or other Indebtedness to become due before its stated maturity or before its regularly scheduled dates of payment or to permit the holders thereof to cause either Obligor or any Restricted Subsidiary to repurchase or repay such Bank Credit Facilities or other Indebtedness, and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (eg) ~~Any representation~~filing by or on the behalf of either Obligor or the general partner of Star Gas of a voluntary petition or an answer seeking reorganization, ~~warranty certification~~ arrangement, readjustment of its debts or ~~statement made~~ for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or ~~deemed made~~ liquidation or similar act or law, state or Federal, now or hereafter existing ("Bankruptcy Law"), or any action by ~~such Borrower in this Agreement~~ either Obligor or ~~in any certificate~~the general partner of Star Gas for, ~~financial statement~~ or consent or acquiescence to, the appointment of receiver, trustee or other ~~document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01~~custodian of either Obligor, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ or the ~~deferred purchase price~~ general partner of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityStar Gas, or in of all or a substantial part of its property; or the ~~performance~~ making by either Obligor or the general partner of ~~or compliance with any term~~ Star Gas of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or ~~shall fail generally~~ the admission by either Obligor or the general partner of Star Gas in writing of its inability to pay its debts as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Iffiling of any involuntary petition against either Obligor or the general partner of Star Gas in bankruptcy or seeking reorganization, ~~within sixty (60) days after~~ arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ premises shall have been issued or ~~hereafter constituted,~~ entered therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law, such case~~ powers over either Obligor or the general partner of Star Gas or over all or a part of its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of either Obligor or the ~~stay~~ general partner of ~~any such order~~ Star Gas or ~~proceeding shall thereafter be set aside,~~ of all or ~~if within sixty (60) days after~~ a substantial part of its property; or the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of either Obligor or the general partner of Star Gas; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or (j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged, or (k) a final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in the aggregate equal~~ (which is or are non-appealable or which has or have not been stayed pending appeal or as to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~which all rights to appeal have expired or been exhausted) shall be rendered against either Obligor or any Restricted Subsidiary for the payment of money in excess of $1,000,000 in the aggregate and any one of such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ judgments shall not ~~have been~~ be discharged or execution ~~thereof~~ thereon stayed pending ~~appeal, or if,~~ appeal within ~~thirty (30)~~ 45 days after the ~~expiration~~ date due, or, in the event of ~~any~~ such a stay, such judgment shall not ~~have been discharged~~be discharged within 30 days after such stay expires or any action shall be legally taken by a creditor to levy upon the assets or properties of either Obligor or any Restricted Subsidiary to enforce any such judgment; or (jl) ~~Such Borrower~~ any of the Operative Agreements shall at any time, for any reason, cease to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Operative Agreements shall be contested by or on behalf of either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any ~~member~~ Restricted Subsidiary, or either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any Restricted Subsidiary shall renounce any of the ~~Controlled Group shall fail to pay when due an amount~~ Operative Agreements, or ~~amounts aggregating in excess of $500,000 which~~ deny that it is ~~obligated to pay to~~ bound by the ~~PBGC or to a Plan under Title IV~~ terms of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or~~ 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Operative Agreements; or (km) ~~Such Borrower~~ any order, judgement or decree is entered in any proceedings against an Obligor decreeing a split-up of such Obligor which requires the divestiture of assets of such Obligor or the divestiture of the stock of a Restricted Subsidiary which would not be permitted if such divestiture were considered a partial disposition of assets pursuant to Section 10.7(c) and such order, judgment or decree shall not be dismissed or execution thereon stayed pending appeal within 30 days after entry thereof, or, in the event of such a stay, such order, judgment or decree shall not be discharged within 30 days after such stay expires; or (n) there shall occur at any time a change in Legal Requirements specifically applicable to either Obligor or to the Business or to the business of the wholesale and retail sale, distribution and storage of propane gas and related petroleum derivative products and the related retail sale of supplies and equipment, including home appliances which would have a Material Adverse Effect (other than on the prospects (financial or otherwise) of the Obligors or the Business) and 60 days after the earlier of (i) such occurrence shall first have become known to any officer of either Obligor or the general partner of Star Gas or (ii) written notice thereof shall have been received by either Obligor or the general partner of Star Gas from any holder of any Note, such Material Adverse Effect shall be continuing; or (o) any Lien purported to be created by any Security Document shall cease to ~~be an investment management company (or a Portfolio thereof) registered under the Investment Company Act~~be, or ~~such Borrower's registration under~~ shall for any reason be asserted by either Obligor, the ~~Investment Company Act~~general partner of Star Gas or any Restricted Subsidiary not to be, a valid, perfected, first priority Lien on the securities, properties or assets covered thereby, other than as a result of an act or omission of the Trustee or any holder of a Note; or (p) any governmental authority revokes or fails to renew any material license, permit or franchise of either Obligor or any Restricted Subsidiary, or ~~that~~ either Obligor or any Restricted Subsidiary for any reason loses any material license, permit or franchise, or either Obligor or any Restricted Subsidiary suffers the imposition of any ~~Borrower Agent~~ restraining order, escrow, suspension or impound of ~~such Borrower~~funds in connection with any proceeding, ~~shall lapse~~ (judicial or ~~be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing~~ administrative) with respect to ~~such defaulting Borrower~~any material license, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest permit or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.franchise;

Appears in 1 contract

Samples: First Mortgage Notes Agreement (Star Gas Partners Lp)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following events ~~(each an "EVENT OF DEFAULT")~~ of default shall ~~occur with respect to any Borrower:~~have occurred and be continuing; (a) ~~Such Borrower (i) shall~~ failure by the Company to pay when due any amount required to be paid under this Participation Agreement or the Company Obligation, which failure causes a default in the payment when due of the principal ~~of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~of, or ~~(ii) shall default in~~ premium, if any, or interest on, any of the ~~payment of any other amount due hereunder after the same becomes due and payable~~Bonds; or (b) ~~Such Borrower shall default in~~ failure by the ~~performance~~ Company to pay when due any amount required to be paid under Section 4.11 of ~~or compliance with any term contained in Sections 9.01(a~~this Participation Agreement, which failure causes an Event of Default to occur pursuant to paragraph (a) ~~or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in~~ of Section 12.01 of the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~Indenture; or (c) ~~Such Borrower shall default~~ failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained in the ~~performance of or compliance with any term contained herein~~ Participation Agreement (other than ~~those expressly referred~~ failure to pay amounts required to be paid under Sections 4.04, 4.05 and 4.08), the Tax Regulatory Agreement or in ~~this Section 10.01, and such default shall not have been remedied within five~~ the Company Obligation for a period of ninety (590) ~~Banking Days~~ days after the date on which written notice ~~thereof~~ of such failure, requiring the Company to remedy the same, shall have been given to ~~such Borrower~~ the Company by the ~~Operations Agent~~Authority or the Trustee; or (d) ~~Such Borrower shall default in~~ the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period occurrence of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no an Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part Bankruptcy of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCompany; then, and in any such event, the Trustee (as assignee of the Authority) may, with the consent of the Bond Insurer (provided that the Bond Insurer is not in default under the Policy), and/or the direction of the Bond Insurer (provided that the Bond Insurer is not in default under the Policy), or, upon the written request or direction of the owners of not less than twenty-five percent (25%) in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, proceed to protect and enforce all rights of the owners of Bonds and the Trustee and as permitted by the Indenture and the laws of the State of New York, by such means or appropriate judicial proceedings as shall be suitable or deemed by it most effective, including suits or special proceedings at law or in equity, or otherwise, for specific enforcement of any covenant or agreement contained in the Participation Agreement, or to require the Company to perform its duty under the Participation Agreement. Any amounts collected by the Trustee pursuant to action taken here shall be applied in accordance with the Indenture. In addition, if at any time ~~thereafter~~the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, ~~if any Event of Default~~ the Company Obligation shall ~~then~~ thereupon become and be ~~continuing~~ immediately due and payable, subject to such declaration with respect to ~~such defaulting Borrower~~the Bonds being annulled pursuant to Section 12.03 of the Indenture. Furthermore, ~~(i)~~ in the ~~case~~ event of ~~any Event of Default specified in paragraphs (g) and (h) above~~a Company default under the Insurance Agreement, the ~~Commitments as to such defaulting Borrower~~ Company Obligation shall thereupon ~~automatically~~ become and be ~~terminated~~ immediately due and payable. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of of, premium, if any, and ~~accrued~~ interest on on, the ~~Loans~~ Company Obligation which shall ~~automatically~~ have become due and payable ~~without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived~~otherwise than by such declaration, and ~~(ii) in~~ all other sums payable under this Participation Agreement, except the ~~case of any other Event of Default specified above~~principal of, ~~either~~ and interest on, the Company Obligation which shall have become due and payable by such declaration, shall have been paid or ~~both~~ provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the ~~following actions may be taken:~~ Trustee and of the ~~Operations Agent may~~owners of the Bonds shall have been paid, including reasonable attorneys' fees paid or incurred, and ~~upon~~ all defaults hereunder and under the ~~written~~ Bonds or ~~telephonic (confirmed in writing) request~~ under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the ~~Majority Banks shall~~Trustee or provision deemed by the Trustee to be adequate shall be made therefore, then and in every such case, the Bond Insurer (unless the Bond Insurer is then in default under the Policy), or the owners of a majority in aggregate principal amount of the Bonds then outstanding, with the consent of the Bond Insurer, by written notice to the Authority and to the Trustee, may rescind such ~~defaulting Borrower~~ declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least twenty-five percent (A25%) ~~declare~~ in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of a majority in aggregate principal amount of ~~and accrued interest in respect of~~ the outstanding Bonds, then any such ~~defaulting Borrower's Loans~~ declaration shall ipso facto be deemed to be ~~forthwith due~~ rescinded and ~~payable~~any such default and its consequences shall ipso facto be deemed to be annulled, ~~whereupon~~ but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. In case the ~~principal of~~ Trustee shall have proceeded to enforce any right under this Participation Agreement or the Company Obligation and ~~accrued interest~~ such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in ~~respect of~~ every such ~~Loans~~ case the Company, the Authority, the Bond Insurer and the Trustee shall ~~become forthwith due~~ be restored respectively to their former positions and ~~payable without presentment~~rights hereunder, ~~demand~~and all rights, ~~protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ remedies and powers of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind~~ Company, the Authority, the Bond Insurer and the ~~percentages of the Commitment Fee and other fees and expenses otherwise payable by~~ Trustee shall continue as though no such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationproceedings had been taken.

Appears in 1 contract

Samples: Participation Agreement (Keyspan Corp)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ The Company shall default in the payment of principal of ~~any Loan,~~ or interest ~~accrued thereon or fee due hereunder~~ on the Note after the same becomes due and payable, whether on demand, at maturity or ~~by acceleration~~ at a date fixed for the payment of any installment or prepayment thereof or otherwise~~, or~~ ; or (iib) The Company shall default in the payment of any other ~~amount~~ fee due ~~hereunder~~ hereunder, including but not limited to the Equipment Loan Fee, within 30 days after the same becomes due and payable, whether on demand, at maturity or at a date fixed for the payment of any installment or prepayment thereof or otherwise; or (bc) ~~Such Borrower~~ The Company shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~Articles 6 or 7 and, as to any terms capable of being cured, fail to cure the same within thirty (30) ~~or 9.01(b~~days after receipt of written notice notifying the Company of such default; or (d) ~~and such default shall have continued for more than three (3) Banking Days, or such Borrower~~ The Company shall default in the performance of or compliance with any term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~this Agreement other than those specifically referred to in this Article 8 and such default shall not have been remedied within 30 days after written notice thereof shall have been given to the Company by Dominion; or (ce) ~~Such Borrower~~ The Company shall default in the performance of or compliance with any term contained ~~herein other than those expressly referred to~~ in ~~this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by~~ the ~~Operations Agent; or (d) Such Borrower shall default~~ Security Documents or in the performance ~~of,~~ of or compliance ~~with,~~ with any ~~material~~ term contained in any other written agreement with ~~the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~Dominion, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (ef) Any ~~representation,~~ representation or warranty ~~certification or statement made or deemed~~ made by ~~such Borrower in this Agreement~~ the Company herein or ~~in any certificate, financial statement or other document delivered~~ pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (fg) ~~Except as otherwise provided~~ The holder of any Indebtedness in ~~this Section 10.01~~respect of borrowed money, ~~such Borrower shall default in~~ any ~~payment due on Indebtedness for borrowed money~~ Capital Lease or the deferred purchase price of property, ~~the aggregate outstanding principal amount of which is~~ in ~~excess of five percent (5%) of such Borrower's Total Assets~~any case aggregating $500,000 or more, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing accelerated the maturity thereof as a result of ~~such claim having been asserted in respect of such Indebtedness~~any default thereunder; or (gh) ~~Such Borrower~~ The Company shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of ~~such Borrower~~ the Company or any substantial part of the property ~~or assets~~ of ~~such Borrower~~ the Company, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Company shall take any action ~~shall be taken~~ to dissolve or liquidate ~~such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~the Company; or (hi) If, within ~~sixty (60)~~ 30 days after the commencement against ~~such Borrower~~ the Company of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of ~~such Borrower~~ the Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within ~~sixty (60)~~ 30 days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such Borrower~~ the Company or any substantial part of the property of ~~such Borrower~~ the Company, such appointment shall not have been vacated; or (ij) A final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower~~the Company, exceeds an ~~amount in the~~ aggregate ~~equal to five percent (5%)~~ of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $500,000 shall be rendered against ~~such Borrower~~ the Company and if, within ~~thirty (30)~~ 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty (30)~~ 60 days after the expiration of any such stay, such judgment shall not have been discharged~~; or (j) Such Borrower~~ , or if any ~~member~~ such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the ~~Controlled Group shall fail to pay when due an amount~~ property or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member assets of the ~~Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC~~ Company shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation have been seized in ~~excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio~~ satisfaction thereof~~) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~; then, and in any such event, and at any time thereafter, if any Event of Default shall then be ~~continuing with respect to such defaulting Borrower~~continuing, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions Dominion may ~~be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall,~~ by written notice to ~~such defaulting Borrower (A)~~ the Company, declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ each of the Note to be forthwith due and payable, whereupon the principal of and accrued interest in respect of ~~such Loans~~ the Note shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower, and/or (B) terminate~~ the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationCompany.

Appears in 1 contract

Samples: Loan Agreement (Online Resources & Communications Corp)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ the Company shall default in the payment of any principal of or Make Whole Amount or Premium Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) the Company shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or (bc) ~~Such Borrower~~ the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in Section 7(f), any of Sections ~~9.01(a) or 9.01(b) and such default shall have continued for more~~ 10.1 through 10.8 (other than ~~three (3) Banking Days~~Section 10.8(c)), inclusive, or ~~such Borrower~~ the Dedicated Funds are not used to repay Indebtedness as specified in the pro forma calculations set forth in the definition of Consolidated Pro Forma Debt Service or the definition of Maximum Consolidated Pro Forma Debt Service, as the case may be; or (d) the Company, either General Partner, the Public Partnership or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking~~ 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent~~Company from the Trustee or from any Note holder; or (de) ~~Such Borrower~~ any representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this 57 Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or (i) the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default (after receiving notice, if any, and/or the expiration of any applicable grace period) in the ~~performance of,~~ payment of any amount of principal of or ~~compliance with, any material term contained in any other written agreement with~~ premium or interest on the ~~Operations Agent~~ Parity Debt or any ~~Bank pertaining~~ event shall occur or condition shall exist in respect of the Parity Debt the effect of which is to ~~this Agreement~~ cause such Parity Debt to become due before its stated maturity or ~~such Borrower's Loans,~~ before its regularly scheduled dates of payment and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~; or~~; (eii) ~~Any representation, warranty certification~~ the Company or ~~statement made~~ any Restricted Subsidiary (as principal or ~~deemed made by such Borrower in this Agreement or in any certificate, financial statement~~ guarantor or other ~~document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f~~surety) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ shall default ~~in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent~~ (~~5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace~~after receiving notice, if any, and/or the expiration of any applicable ~~thereto and~~ grace period) in the payment of any amount of principal of or premium or interest on any Indebtedness in an amount at least equal to $10,000,000; or any event shall ~~not have been waived pursuant thereto and~~ occur or condition shall ~~permit the holder~~ exist in respect of such other Indebtedness ~~to declare such Indebtedness due and payable before its stated maturity,~~ which is outstanding in a principal amount of at least $10,000,000 or ~~in the performance of or compliance with any term of~~ under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating ~~thereto~~to such other Indebtedness, ~~and any~~ the effect of which is to cause such ~~default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such~~ other Indebtedness to ~~declare such Indebtedness~~ become due ~~and payable~~ before its stated ~~maturity, unless such Borrower shall be contesting such payment~~ maturity or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on~~ before its ~~books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event~~ regularly scheduled dates of ~~Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~payment; or (g) ~~Such Borrower shall discontinue~~ filing by or on the behalf of the Company or the Managing General Partner of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its ~~business~~ debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("Bankruptcy Law"), or any action by the Company or the Managing General Partner with respect to, or consent or acquiescence to, the appointment of a receiver, trustee or other ~~than in connection with~~ custodian of the Company or the Managing General Partner, or of all or a ~~permitted merger~~ substantial part of its property; or ~~consolidation~~ the making by the Company or the Managing General Partner of ~~such Borrower) or shall make an~~ any assignment for the benefit of creditors, ; or ~~shall fail generally~~ the admission by the Company or the Managing General Partner of the Company in writing of its inability to pay its debts as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Iffiling of any involuntary petition against the Company or the Managing General Partner in bankruptcy or seeking reorganization, ~~within sixty (60) days after~~ arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ premises shall have been issued or ~~hereafter constituted,~~ entered therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law, such case~~ powers over the Company or the Managing General Partner or over all or a part of its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of the ~~stay~~ Company or the Managing General Partner or of ~~any such order~~ all or ~~proceeding shall thereafter be set aside,~~ a substantial part of its property; or ~~if within sixty (60) days after~~ the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of the Company or the Managing General Partner; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or (j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (k) a final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in the aggregate equal~~ (which is or are non-appealable or which has or have not been stayed pending appeal or as to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~which all rights to appeal have expired or been exhausted) shall be rendered against the Company or any Restricted Subsidiary for the payment of money in excess of $10,000,000 in the aggregate (net of any insurance coverage) and any one of such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ judgments shall not ~~have been~~ be discharged or execution ~~thereof~~ thereon stayed pending ~~appeal, or if,~~ appeal within ~~thirty (30)~~ 60 days after the ~~expiration~~ date due, or, in the event of ~~any~~ such a stay, such judgment shall not ~~have been discharged~~be discharged within 60 days after such stay expires or any action shall be legally taken by a judgment creditor to levy upon the assets or properties of the Company or any Restricted Subsidiary to enforce any such judgment; or (jl) ~~Such Borrower~~ any of the Security Documents shall at any time, for any reason, cease in any material respect to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Security Documents shall be contested by or on behalf of the Company, either General Partner, the Public Partnership, or any ~~member~~ Restricted Subsidiary, or the Company, either General Partner, the Public Partnership, or any Restricted Subsidiary shall renounce any of the ~~Controlled Group shall fail to pay when due an amount~~ Security Documents or ~~amounts aggregating in excess of $500,000 which~~ deny that it is ~~obligated to pay to~~ bound by the ~~PBGC or to a Plan under Title IV~~ terms of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or~~ 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Security Documents; or (km) ~~Such Borrower~~ any order, judgment or decree is entered in any proceedings against the Company decreeing a split-up of the Company, and such order, judgment or decree shall ~~cease to~~ not be ~~an investment management company (~~dismissed or ~~a Portfolio~~ execution thereon stayed pending appeal or review within 60 days after entry thereof~~) registered under the Investment Company Act~~, or ~~such Borrower's registration under~~ in the ~~Investment Company Act, or that of any Borrower Agent~~ event of such ~~Borrower~~a stay, such order, judgment or decree shall ~~lapse or~~ not be ~~suspended; then, and in any~~ dismissed within 60 days after such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.stay expires;

Appears in 1 contract

Samples: Note Agreement (Cornerstone Propane Partners Lp)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following ~~events~~ Events of Default (~~each an "EVENT OF DEFAULT"~~whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any ~~other amount due hereunder after~~ installment of interest or Liquidated Damages with respect to any of the Notes as and when the same ~~becomes~~ shall become due and payable, and continuance of such default for a period of thirty (30) days; or (b) ~~Such Borrower shall~~ default in the ~~performance~~ payment of the principal of or ~~compliance~~ premium, if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection with any ~~term contained~~ redemption or repurchase, in ~~Sections 9.01(a)~~ each case pursuant to Article 3, by acceleration or ~~9.01(b)~~ otherwise (and regardless of whether such ~~default shall have continued for more than three (3) Banking Days~~payment is to be made in cash, Common Stock or ~~such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d~~a combination thereof)~~, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~; or (c) ~~Such Borrower shall~~ default in the ~~performance of or compliance with any term contained herein other than those expressly referred~~ Company's obligation to provide a Fundamental Change Notice upon a Fundamental Change as provided in ~~this~~ Section ~~10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~3.05; or (d) ~~Such Borrower shall~~ failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Notes or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after the ~~performance of~~date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or ~~compliance with, any material term contained~~ the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent (25%) in ~~any other written agreement~~ aggregate principal amount of the Notes at the time outstanding determined in accordance with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoSection 8.04; or (e) ~~Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement~~ the Company shall commence a voluntary case or other ~~document delivered pursuant hereto shall prove~~ proceeding seeking liquidation, reorganization or other relief with respect to ~~have been false~~ its debts under any bankruptcy, insolvency or ~~incorrect~~ 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 ~~material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price~~ substantial part of its property, or shall consent to any such relief or to the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance appointment of or ~~compliance with~~ taking possession by any ~~term of any evidence of~~ such ~~Indebtedness or of any mortgage, indenture~~ official in an involuntary case or other ~~agreement relating thereto~~proceeding commenced against it, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an a general assignment for the benefit of creditors, or shall fail generally to pay its debts as ~~such debts~~ they become due~~, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator~~ ; or (f) an involuntary case or other ~~similar official) of such Borrower~~ proceeding shall be commenced against the Company seeking liquidation, reorganization or other relief with respect to its debts under any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as law now or hereafter ~~constituted~~in effect or seeking the appointment of a trustee, ~~or any other applicable federal or state bankruptcy~~receiver, ~~insolvency~~ liquidator, custodian or other similar ~~law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business~~ official of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower it or any substantial part of ~~the property of~~ its property, and such ~~Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with~~ involuntary case or other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall ~~be instituted by~~ remain undismissed and unstayed for a ~~fiduciary~~ period of ~~any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5~~ninety (90) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedconsecutive days; then, and in ~~any~~ each and every such ~~event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ case (~~i) in the case of any~~ other than an Event of Default specified in ~~paragraphs~~ Section 6.01(e) or 6.01(f)), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent (g25%) in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Noteholders) specifying the respective Event of Default and stating that it is a "notice of acceleration," may declare the principal of and premium, if any, on all the Notes and the interest accrued thereon to be due and payable immediately, and upon receipt of such notice the same shall become and shall be immediately due and payable. If an Event of Default specified in Section 6.01(e) or (hf) ~~above~~occurs, the ~~Commitments~~ principal of all the Notes and the interest accrued thereon shall be immediately and automatically due and payable without necessity of further action. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to ~~such defaulting Borrower shall thereupon automatically be terminated~~ pay all matured installments of interest upon all Notes and the principal of and premium, if any, on any and all Notes which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Notes plus 1%, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 7.06, and if any and all defaults under this Indenture, other than the nonpayment of principal of and premium, if any, and accrued interest on ~~the Loans~~ Notes which shall ~~automatically~~ have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and ~~payable without presentment, demand, protest or other notice or formality~~ in every such case the holders of ~~any kind, all of which are hereby expressly waived, and (ii)~~ a majority in ~~the case of any other Event of Default specified above, either or both~~ aggregate principal amount of the ~~following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such ~~defaulting Borrower (A) declare~~ declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. The Company shall notify in writing a Responsible Officer of the ~~principal~~ Trustee, promptly upon becoming aware thereof, of any Event of Default. In case the Trustee shall have proceeded to enforce any right under this Indenture and ~~accrued interest in respect~~ such proceedings shall have been discontinued or abandoned because of such ~~defaulting Borrower's Loans~~ waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be ~~forthwith due~~ restored respectively to their several positions and ~~payable~~rights hereunder, ~~whereupon the principal of~~ and ~~accrued interest in respect of such Loans shall become forthwith due~~ all rights, remedies and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments powers of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice~~ Company, the holders of ~~any kind~~ Notes, and the ~~percentages of the Commitment Fee and other fees and expenses otherwise payable by~~ Trustee shall continue as though no such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationproceeding had been taken.

Appears in 1 contract

Samples: Indenture (Standard Management Corp)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Any Borrower ~~(i)~~ shall default in the payment of principal of or interest on any ~~Loan, interest accrued thereon~~ Note or any other fee due ~~hereunder after the same becomes due and payable~~hereunder, whether at maturity or ~~by acceleration or otherwise, or (ii) shall default in~~ at a date fixed for the payment of any ~~other amount due hereunder after~~ installment or prepayment thereof or otherwise, and in the ~~same becomes due and payable~~case of any such fee payment default, such default shall continue for a period of three (3) Business Days following the date of such default; or (b) ~~Such~~ Any Borrower shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~6.2(g), 6.2(h), 6.2(i), 6.3, 6.9, 6.10 and 7.1 to and including 7.14, and 8; or (c) ~~or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such~~ Any Borrower shall default in the performance of or compliance with any ~~term contained in Sections 8.02(d)~~term, ~~8.02(e)~~condition, ~~8.02(g), 8.05, 9.02, 9.03~~ covenant or ~~9.04; or~~ agreement (~~c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ other than those ~~expressly referred~~ listed in 9.1(b)) to in be performed or observed by it under this ~~Section 10.01,~~ Credit Agreement or under any other Loan Document and such default shall ~~not have been remedied within five~~ continue for a period of thirty (530) ~~Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~days or more; or (d) ~~Such Borrower shall default in the performance of,~~ Any representation or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty ~~certification or statement made or deemed~~ made by ~~such~~ any Borrower ~~in this Agreement~~ herein or ~~in any certificate, financial statement or other document delivered~~ pursuant hereto shall prove to have been false or incorrect in any material respect when made or when deemed to have been made; or (fe) ~~Except as otherwise provided in this Section 10.01, such~~ Any Borrower or any Subsidiary shall default in (i) the payment of any ~~payment due on~~ Indebtedness ~~for~~ in respect of borrowed money (other than the Loans), any Capitalized Lease or the deferred purchase price of ~~property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets,~~ any property and such default (A) shall continue ~~for more than the period~~ after giving effect to any applicable grace periods and (B) shall be in respect of ~~grace, if any, applicable thereto~~ an aggregate amount of principal (whether or not due) and ~~shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ accrued interest exceeding $250,000; or in (ii) the performance of or compliance with any term of any ~~evidence of~~ agreement or instrument relating to such Indebtedness ~~or of any mortgage, indenture or other agreement relating thereto,~~ and ~~any~~ such default (A) shall ~~continue for more than~~ continue, without having been duly cured, waived or consented to, beyond the period of grace, if any, specified ~~therein~~ in such agreement or instrument, and ~~shall not have been waived pursuant thereto and~~ (B) shall permit the ~~holder~~ acceleration of such Indebtedness prior to ~~declare such Indebtedness due and payable before~~ its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (gf) ~~Such~~ Except as permitted by 7.5, any Borrower or any Subsidiary shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of any Borrower or such ~~Borrower~~ Subsidiary or any substantial part of the property of any Borrower or ~~assets of~~ such ~~Borrower~~ Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any Borrower or any Subsidiary shall take any action ~~shall be taken~~ to dissolve or liquidate any Borrower or such ~~Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~Subsidiary; or (hg) If, within sixty (60) days after the commencement against ~~such~~ any Borrower or any Subsidiary of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of any Borrower and such ~~Borrower~~ Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such~~ any Borrower or any Subsidiary or any substantial part of the property of any Borrower or such ~~Borrower~~ Subsidiary, such appointment shall not have been vacated; or (ih) A final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower~~any or all of the Borrowers and its Subsidiaries, exceeds an ~~amount in the~~ aggregate ~~equal to five percent (5%)~~ of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $250,000 shall be rendered against ~~such~~ any Borrower or any Subsidiary and if, within ~~thirty~~ sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty~~ sixty (3060) days after the expiration of any such stay, such judgment shall not have been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of any Borrower or any Subsidiary shall have been seized in satisfaction thereof; or (i) Any Borrower or any Subsidiary loses, fails to keep in force, suffers the termination or revocation of or terminates, forfeits or suffers an amendment to any License which would have a material adverse effect on the operations of such Borrower or such Subsidiary; or (j) ~~Such Borrower~~ There shall have occurred a Change in Control; or (k) If with respect to any Employee Benefit Plans or Multiemployer Plans, there shall occur any ~~member~~ of the ~~Controlled Group shall fail~~ following which could reasonably be expected to ~~pay when due an amount or amounts aggregating in excess~~ have a material adverse effect on the financial condition of ~~$500,000 which it is obligated~~ any Borrower: (i) the violation of any of the provisions of ERISA; (ii) the loss by such a plan intended to ~~pay to~~ be a Qualified Plan of its qualification under Section 401(a) of the ~~PBGC or to a Plan~~ Code; (iii) the incurrence of liability under Title IV of ERISA; (iv) a failure to make full payment when due of all amounts which, under the provisions of any such plan or applicable law, any Borrower or any ERISA Affiliate is required to make; (v) the filing of a notice of intent to terminate such a ~~Plan~~ plan under Sections 4041 or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) 4041A of ERISA; ~~or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur~~ (vi) a complete or partial withdrawal ~~from~~of a Borrower or an ERISA Affiliate from any such plan; (vii) the receipt of a notice by the plan administrator of such a plan that the PBGC has instituted proceedings to terminate such plan or appoint a trustee to administer such plan; (viii) a commencement or increase of contributions to, or the adoption of or the amendment of, such a ~~default, within~~ plan; and (ix) the ~~meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such~~ assessment against a Borrower or ~~one or more members~~ any ERISA Affiliate of a tax under Section 4980B of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCode; then, and in any such event, and at any time thereafter, if any Event of Default (other than an event described in 9(f) or 9(g) shall then be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and~~ Required Lenders may direct the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent ~~may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~to, by written notice to ~~such defaulting Borrower~~ any Borrower, (Ai) declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of ~~such Loans~~ the Notes, and all other amounts then due hereunder, shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ each Borrower, and/or (Bii) terminate the ~~Commitments as to such defaulting Borrower~~Total Commitment, whereupon the ~~Commitments~~ Total Commitment of the ~~Banks~~ Lenders (and the Commitment of each individual Lender) to make ~~Committed Credit~~ Loans hereunder ~~to such defaulting Borrower~~ shall forthwith terminate without any other notice of any ~~kind~~ kind; and with respect to any event described in 9(f) or 9(g) above, the Commitments shall automatically terminate and the ~~percentages~~ principal of the ~~Commitment Fee~~ Notes then outstanding, together with accrued interest thereon and all other ~~fees~~ amounts then due hereunder, shall automatically become due and ~~expenses otherwise payable~~ payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by ~~such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis~~ each of the ~~percentages set forth opposite such remaining~~ Borrowers~~' names on SCHEDULE 1~~, as anything contained herein or in ~~effect at~~ any other Loan Document to the ~~time of such termination~~contrary notwithstanding.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Dynamics Research Corp)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower~~ Appia shall fail to pay any principal amount of the New Debenture or fees, charges, costs or expenses (iother than an Interest Default permitted by Section 2.5(a)) ~~shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes~~ due and ~~payable, whether at maturity~~ payable under the New Debenture or ~~by acceleration~~ any of the Financing Documents when such payment comes due in accordance with the terms of this Agreement and the other Financing Documents; or ~~otherwise, or (ii)~~ Appia shall ~~default in the payment of~~ fail to pay any other amount payable hereunder when due ~~hereunder after the same becomes due and payable~~(other than an Interest Default permitted by Section 2.5(a)); or (b) ~~Such Borrower shall default~~ any representation or warranty made by a Company or any other Obligor herein or in ~~the performance of~~ any other Financing Document or ~~compliance with any term~~ which is contained in ~~Sections 9.01(a)~~ any certificate, document, financial or ~~9.01(b) and~~ other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Financing Document shall prove, when taken as a whole, to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~date made; or (c) ~~Such Borrower~~ the failure by Appia or any other Obligor to punctually perform, observe, comply with or satisfy (i) any covenant, agreement or condition contained in Sections 7 or 8 of this Agreement, or (ii) any covenant, agreement or condition contained in any Financing Document, subject to any applicable cure period set forth therein; or (d) Appia or any Subsidiary shall be in default in the observance or performance of any other covenant contained in this Agreement or ~~compliance with~~ any ~~term contained herein~~ other Financing Document (other than ~~those expressly referred to~~ as provided in paragraphs (a) through (c) of this Section ~~10.01~~9.1), and such default (if remediable) shall ~~not have been remedied within five~~ continue unremedied for a period of twenty (520) ~~Banking Days~~ days after the earlier of (i) the date on which a Responsible Officer of such Company first learns of such default or (ii) the date on which written notice thereof shall have been given to such ~~Borrower~~ Company by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoPurchaser; or (e) ~~Any representation~~Appia or any Subsidiary shall fail to pay when due or shall fail to observe or perform any term, ~~warranty certification~~ covenant or ~~statement made~~ agreement evidencing or ~~deemed made by~~ securing any Indebtedness of such ~~Borrower~~ Company which, together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), which results in ~~this Agreement~~ the proper acceleration of such Indebtedness or in the proper declaration of an event of default under any ~~certificate, financial statement or other document delivered pursuant hereto shall prove~~ agreement relating to ~~have been false or incorrect in any material respect when made~~such Indebtedness; or (f) ~~Except as otherwise provided in this Section 10.01~~a Company or any Subsidiary, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, ; or (ii) shall ~~fail generally~~ admit in writing its inability to pay its debts as ~~such debts~~ they become due, or its inability to pay or perform under the Financing Documents; or (iii) shall ~~apply~~ file a voluntary petition in bankruptcy; or (iv) shall file any petition, answer, or document seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall seek or consent to or acquiesce in the appointment of ~~or taking possession by a~~ any trustee, ~~receiver~~ receiver, or liquidator ~~(or other similar official)~~ of such ~~Borrower~~ Company or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property ~~or assets~~ of such ~~Borrower~~ Company; or (vi) other than as permitted herein, shall ~~commence a case~~ cease operations of its business as its business has normally been conducted (which consists of advertising, marketing and sales within the mobile industry) or ~~have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~is currently proposed to be conducted, or ~~any other applicable federal~~ terminate substantially all of its employees; or ~~state bankruptcy, insolvency~~ (vii) such Company’s directors or ~~other similar law, or if~~ majority shareholders shall take any action ~~shall be taken to dissolve or liquidate such Borrower~~ initiating any of the foregoing actions described in clauses (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) through (vi); or (hg) ~~If, within sixty~~ either (60i) forty-five (45) days shall have expired after the commencement of an involuntary action against ~~such Borrower of~~ a ~~case under the federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal~~ Subsidiary seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or ~~state bankruptcy~~similar relief under any present or future statute, ~~insolvency~~ law or ~~other similar law~~regulation, without such ~~case shall have been consented to or shall not have been~~ action being dismissed or all orders or proceedings thereunder affecting the operations or the business of such ~~Borrower~~ Company or any Subsidiary being stayed, ; or ~~if the~~ (ii) a stay of any such order or ~~proceeding~~ proceedings shall thereafter be set ~~aside,~~ aside and the action setting it aside shall not be timely appealed; or ~~if within sixty~~ (60iii) such Company or any Subsidiary shall file any answer admitting or not contesting the material allegations of a petition filed against such Company or any Subsidiary in any such proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) twenty (20) days shall have expired after the ~~entry~~ appointment, without the consent or acquiescence of a ~~decree appointing a~~ Company or any Subsidiary, of any trustee, receiver or liquidator ~~(or other similar official)~~ of such ~~Borrower~~ Company or any Subsidiary or of all or any substantial part of the ~~property~~ properties of such ~~Borrower~~ Company or any Subsidiary without such appointment ~~shall not have been~~ being vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower Appia or any ~~member of the~~ Commonly Controlled ~~Group~~ Entity shall fail to pay when due an any amount ~~or amounts aggregating in excess of $500,000 which~~ that it ~~is obligated~~ shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA, unless (A) such liability is being contested in good faith by appropriate proceedings, such Company or such Commonly Controlled Entity, as the case may be, has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or (B) which would not have a Material Adverse Effect; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Plans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; ~~or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5~~or (i) ~~of ERISA, with respect to,~~ one or more ~~Multiemployer Plans which could cause such Borrower~~ final, nonappealable judgments or ~~one~~ decrees shall be entered against Appia or ~~more members~~ any of ~~the Controlled Group to incur a current payment obligation~~ its Subsidiaries involving individually monetary damages of Two Hundred Fifty and 00/100 Dollars ($250,000.00) (in excess of what is paid or covered by insurance) or in the aggregate, monetary damages of Two Hundred Fifty Thousand and 00/100 Dollars ($~~500,000~~250,000.00) (in excess of what is paid or covered by insurance) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or (j) if any of the Financing Documents or the Warrant (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Purchaser, or any action at law, suit or in equity or other legal proceeding be commenced by or on behalf of a Company or any of its officers of members of its Board of Directors and results in, or is reasonably likely to result in, a finding, order, decree or judgment which does or would cancel, revoke, curtail or rescind any of the Financing Documents or the Warrant, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents or the Warrant (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (k) ~~Such Borrower shall~~ any Lien created by any of the Security Documents shall, by reason of any breach by any Obligor thereto of any of its covenants or other obligations contained in such Security Documents, cease to be ~~an investment management company~~ enforceable and of the same effect and priority purported to be created thereby; or (l) a material portion of the property of a Company or any of its Subsidiaries is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds the amount of insurance proceeds readily available for such restoration or replacement; or (m) any default shall exist and remains unwaived, unforborn or uncured with respect to any of the Senior Debt or Replacement Senior Debt if, as a ~~Portfolio thereof~~result of such default, any holder of the Senior Debt or Replacement Senior Debt, is entitled and elects to cause any such Senior Debt or Replacement Senior Debt to become due prior to its stated date of maturity; or (n) ~~registered~~ any payment which a Company knew or should have known was be made in violation of any subordination agreement entered into between the Purchaser and another holder of Company Indebtedness or Company Subsidiary Indebtedness; or (i) any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (ii) Digital does not perform any obligation or covenant under the ~~Investment Company Act~~Digital Guaranty; (iii) any circumstance described in Sections 9.1(b), (f), (g), and (i) hereinabove with respect to (i.e., as and as-if applied to) Digital (provided that with respect to Digital, the applicable threshold under Section 9.1(i) shall be Five Hundred Thousand Dollars ($500,000)); or (iv) the liquidation, winding up, or ~~such Borrower's registration under the Investment Company Act, or that~~ termination of ~~any Borrower Agent~~ existence of ~~such Borrower, shall lapse or be suspended;~~ Digital. then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ the Purchaser may, by notice to the Companies, declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ New Debenture, and the other Financing Documents to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Companies; provided, however, that in the event of any Event of Default specified in Section 9.1(f), Section 9.1(g) or Section 9.1(h), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ amounts shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPurchaser.

Appears in 1 contract

Samples: Securities Purchase Agreement (Digital Turbine, Inc.)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower:~~ occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay when due and payable any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same becomes ~~due and payable, whether at maturity or by acceleration or otherwise~~due; (b) the Borrower shall fail to pay interest on the Loans, or the Borrower or the Parent Guarantor shall fail to pay any Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to (~~ii) shall default in the payment of~~ S)2.2(c), or any other ~~amount~~ sum due ~~hereunder~~ under any of the Loan Documents within two (2) Business Days after the date on which the same ~~becomes~~ shall have first become due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) ~~Such~~ either of the Guarantors or the Borrower shall ~~default~~ fail to perform any term, covenant or agreement contained in ~~the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01~~(S)(S)9.1(a), 9.1(d) through (g), 9.2 and ~~such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~9.3; or (d) ~~Such~~ the Guarantors, the Borrower or any other Subsidiary of the Borrower shall ~~default~~ fail to perform any other term, covenant or agreement contained in the ~~performance of, or compliance with, any material term contained in any other~~ Loan Documents within fifteen (15) days after the Agent has given written ~~agreement with~~ notice of such failure to the ~~Operations Agent or any Bank pertaining to this Agreement or such~~ Borrower~~'s Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~; or (e) ~~Any representation~~any representation or warranty of the Guarantors, ~~warranty certification~~ the Borrower or ~~statement made or deemed made by such Borrower~~ any of its other Subsidiaries in ~~this Agreement~~ the Loan Documents or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or~~ the ~~deferred purchase price of property~~Guarantors, the ~~aggregate outstanding principal amount~~ Borrower or any of ~~which is~~ its other Subsidiaries shall be in default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to the Bank or any affiliates of the Bank, to the Seller, or in excess of ~~five percent (5%) of~~ $500,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ or within any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, ~~if any~~(h) the Guarantors, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ the ~~holder~~ Borrower or any of ~~such Indebtedness to declare such Indebtedness due and payable before~~ its ~~stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or~~ other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Guarantors, the Borrower or any of its other Subsidiaries shall be unable to pay its debts as ~~such debts become due~~they mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against the Guarantors, ~~or shall apply for or consent to~~ the ~~appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such~~ Borrower or any ~~substantial part~~ of ~~the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any~~ its other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment whichSubsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower~~the Guarantors, the Borrower and its other Subsidiaries exceeds ~~an amount~~ $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedaggregate; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) ~~Such~~ the Parent Guarantor ceases to own legally or beneficially 100% or more of the voting stock of the Borrower ~~shall cease to be an investment management company (~~or ~~a Portfolio thereof) registered under~~ more than 51% of the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that~~ voting stock of any ~~Borrower Agent~~ Subsidiary of ~~such~~ the Borrower, ~~shall lapse~~ and the Borrower ceases to own legally or ~~be suspended~~beneficially 100% or more of the voting stock of Subsidiary Guaranty; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting~~ the Borrower ~~(A)~~ declare all amounts owing with respect to this Credit Agreement, the ~~principal of~~ Notes and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents and all Reimbursement Obligations to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event -------- of Default specified in (S)(S)10.1(h) or 10.1(i), all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank. (i) shall occur, ~~and/or (B)~~ any unused portion of the credit hereunder shall forthwith terminate ~~the Commitments as to such defaulting Borrower, whereupon the Commitments~~ and each of the Banks shall be relieved of all further obligations to make ~~Committed Credit~~ Loans to the Borrower and the Agent shall be relieved of all further obligations to issue, extend or renew the Letter of Credit. If any other Event of Default shall have occurred and be continuing, the Agent may and, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Agent shall be relieved of all further obligations to issue, extend or renew the Letter of Credit. No termination of the credit hereunder shall relieve the Borrower, the Guarantors or any other of Subsidiaries of the Borrower of any of the Obligations. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans pursuant to (S)10.1, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such ~~defaulting Borrower~~ Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall ~~forthwith terminate without~~ have become -- ----- due, by declaration or otherwise, proceed to enforce the payment thereof or any other ~~notice~~ legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any ~~kind~~ Note or purchaser of a Letter of Credit Participation is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ The Borrowers shall fail to pay when due and payable any principal of or interest on the Loans or any other sum due under any of the Loan Documents when the same becomes due; (b) The Borrowers shall fail to perform any term, covenant or agreement contained in Section 6 hereof; (c) The Borrowers or any Subsidiaries shall fail to perform any other term, covenant or agreement contained in this Agreement or any of the other Loan Documents, which failure continues for more than thirty (30) days; (d) Any representation or warranty of the Borrowers in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (e) Any Borrower or any of its Subsidiaries (i) shall be in default under any agreement or agreements evidencing Indebtedness (A) owing to the Bank or are affiliated with the Bank or (B) to any other person owing in excess of $50,000 in aggregate principal amount, which default shall give the ~~payment of principal of any Loan, interest accrued thereon or fee due hereunder after~~ holder thereof the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise~~right to accelerate such indebtedness, or (ii) shall ~~default in the payment of~~ fail to pay any ~~other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and~~ such ~~default shall have continued for more than three (3) Banking Days~~Indebtedness when due, or ~~such Borrower shall default in the performance of or compliance with~~ within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or; (f) ~~Except as otherwise provided~~ Any of the Loan Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect; (g) ~~Such~~ Any Borrower ~~shall discontinue~~ or any of its ~~business~~ Subsidiaries (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidate or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (h) Any Borrower or any of its Subsidiaries shall admit in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A There shall remain undercharged for more than ten (10) days any final judgment ~~which~~or execution action against any Borrower or any of its Subsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against the Borrower and such ~~Borrower,~~ Subsidiary exceeds ~~an amount~~ $50,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under paragraph (g) ~~and~~ or (h) ~~above~~concerning any Borrower, the ~~Commitments as to such defaulting Borrower~~ Commitment shall ~~thereupon~~ automatically ~~be terminated~~ terminate, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereof, and all other amounts payable hereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrowers; and (2) In the case of any Event of Default other than (g) and (h), the Bank may, by written notice to the Borrower, ~~and/or (B)~~ terminate the ~~Commitments as to such defaulting Borrower, whereupon~~ Commitment and/or declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Revolving Credit Agreement (Eltrax Systems Inc)

Events of Default; Acceleration. If any of the following events (~~each~~ an ~~"EVENT OF DEFAULT"~~“Event of Default”) ~~shall occur with respect to any Borrower~~has occurred and is continuing: (a) ~~Such Borrower (i)~~ if the Company shall ~~default in the payment of~~ fail to pay any principal of or interest on the Loans or any ~~Loan, interest accrued thereon~~ other amount payable hereunder or ~~fee due hereunder after~~ under the LOC Documents when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such Borrower~~ if the Company shall ~~default in the performance of or compliance~~ fail to comply with any ~~term~~ of its covenants contained in Sections ~~9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~7.1, 7.2, 7.5-7.12, or ~~such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~7.24-7.32; (c) ~~Such Borrower~~ if the Company or any Subsidiary shall ~~default in the performance of~~ fail to perform any term, covenant or ~~compliance with any term~~ agreement contained herein or in any other Loan Document (other than those ~~expressly referred to~~ specified in ~~this Section 10.01,~~ subsections (a) and (b) above) and the continuance of such ~~default~~ failure shall ~~not have been remedied within five (5) Banking Days~~ exist for 30 days after written notice ~~thereof shall have~~ of such failure has been given to ~~such Borrower~~ the Company by the ~~Operations~~ Agent~~; or~~; (d) ~~Such Borrower shall default in~~ if any representation or warranty of the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower Company in this Agreement or in any ~~certificate, financial statement or~~ other ~~document delivered pursuant hereto~~ Loan Document shall prove to have been false ~~or incorrect~~ in any material respect upon the date when ~~made~~made or deemed to have been made or repeated; (e) if the Company or any of its Significant Subsidiaries shall fail to make any payment due on any obligation for borrowed money (having a total amount outstanding in excess of $500,000), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such obligation and the effect of such failure could or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or a trustee for such holder or holders or of any obligations issued thereunder to accelerate the maturity thereof; (f) if the Company or any of its Significant Subsidiaries shall be involved in financial difficulties as evidenced: (i) by its admission in writing of its inability to pay its debts generally as they become due; (ii) by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its board of directors or other governing body, the commencement of such a voluntary case; (iii) by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert or challenge in a timely manner the material allegation of any such petition; (iv) by the entry of an order for relief against it in any involuntary case commenced under Title 11 which remains undischarged or unstayed for more than sixty (60) days; (v) by its seeking relief as a debtor under any applicable law, other than Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or by its consenting to or acquiescing in such relief; (vi) by entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent or (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors which remains undischarged or unstayed for more than sixty (60) days; (vii) by the entry of an order by a court of competent jurisdiction assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property which remains undischarged or unstayed for more than sixty (60) days; or (fviii) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before by its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make making an assignment for the benefit of of, or entering into a composition with, its creditors, or ~~shall fail generally to pay its debts as such debts become due,~~ appointing or ~~shall apply for or consent~~ consenting to the appointment of ~~or taking possession by~~ a ~~trustee,~~ receiver or ~~liquidator (~~other custodian for all or ~~other similar official) of such Borrower or any~~ a substantial part of its property; (g) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty days, whether or not consecutive, any final judgment against the ~~property~~ Company or ~~assets~~ any of its Significant Subsidiaries which, with other outstanding final judgments, undischarged, against such Person(s) exceeds $500,000 in aggregate amount with respect to the Company or any of its Significant Subsidiaries; (h) if UHS of Delaware, Inc., a subsidiary of UHS, shall cease to be the real estate investment trust advisor to the Company and a new advisor satisfactory to each of the Banks has not been appointed, or a group of managers satisfactory to each of the Banks has not been hired, within ninety (90) days of such ~~Borrower~~ cessation; (i) (i) if any Person or ~~shall commence a case~~ group of Persons (within the meaning of Section 13 or ~~have an order for relief entered against it under~~ 14 of the ~~federal bankruptcy laws~~Securities Exchange Act of 1934, as ~~now~~ amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or ~~hereafter constituted~~more of the outstanding shares of common stock of the Company; or, (ii) during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to constitute a majority of the board of directors of the Company; (j) if any guarantee by UHS of any lease by the Company to a UHS Subsidiary is disavowed, terminated, or ~~any other applicable federal or state bankruptcy, insolvency or other similar law~~ceases to be in full force and effect, or ~~if any action shall be taken to dissolve~~ is waived or ~~liquidate such Borrower~~ amended without the prior written consent of the Majority Banks (other than the termination of a guarantee of such a lease in connection with the sale of a Health Care Facility permitted by Section 7.29); (k) any lease by the Company to a UHS Subsidiary is terminated prior to its stated term, or is amended or compliance by the lessee is waived, without the prior written consent of the Majority Banks (other than the termination of a lease of a Health Care Facility in connection with a ~~permitted merger or consolidation~~ sale of such ~~Borrower~~Health Care Facility permitted by Section 7.29); or (hl) ~~If, within sixty (60) days after~~ if the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal or state bankruptcy, insolvency or other similar law, such case~~ of its Significant Subsidiaries shall ~~have been consented~~ fail to ~~or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed,~~ make any payment due under any Hedging Agreement or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower Company or any ~~substantial part~~ of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group its Significant Subsidiaries shall fail to ~~pay when due an amount~~ observe or ~~amounts aggregating~~ perform any material term, covenant or agreement contained in ~~excess~~ any Hedging Agreement and the effect of ~~$500,000 which it is obligated to pay to~~ such failure could or would have permitted (assuming the ~~PBGC or to a Plan under Title IV~~ giving of ~~ERISA; or a~~ appropriate notice ~~of intent~~ if required) the counterparty thereof to terminate ~~a Plan~~ such Hedging Agreement and demand payment from the Company or ~~Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by~~ such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation Significant Subsidiary in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, ~~and at any time thereafter~~unless the same shall be cured or waived, ~~if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ the Agent (i) ~~in the case of any Event of Default specified in paragraphs (g) and (h) above~~shall, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority ~~Banks shall~~Banks, or (ii) may, with the consent of the Majority Banks, by ~~written~~ notice in writing to the Company, terminate this Agreement and upon such ~~defaulting Borrower (A) declare~~ termination the ~~principal of and accrued interest in respect of such defaulting Borrower's~~ Banks shall have no further obligation to make Loans to be the Company or issue Letters of Credit for the account of the Company, and shall declare all Obligations, including, without limitation the Notes, to be, and they shall thereupon forthwith ~~due~~ mature and ~~payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Company; provided, ~~and/or~~ that in the event of any Event of Default described in clauses (Bf) ~~terminate the Commitments as to such defaulting Borrower~~and (g) hereof, ~~whereupon the Commitments~~ all Obligations shall become immediately due and payable automatically, and all obligations of the Banks to make ~~Committed~~ Loans or issue Letters of Credit ~~Loans hereunder to such defaulting Borrower~~ shall ~~forthwith terminate~~ automatically terminate, without any ~~other~~ requirement of notice from the Banks. To the extent that the Obligations accelerated hereunder relate to Letters of Credit, the amount becoming due and payable shall be the aggregate outstanding amount of the Letters of Credit, whether or not any drawings or claims have been presented thereunder. No termination of the credit hereunder shall relieve the Company of any ~~kind and the percentages~~ Obligations or any of its existing obligations to any of the ~~Commitment Fee~~ Banks arising under other agreements or instruments. No remedy herein conferred upon the Banks is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit Agreement (Universal Health Realty Income Trust)

Events of Default; Acceleration. If 6.1 Any or all of the Obligations of the Borrowers to the Agent and the Banks shall, at the option of the Banks (acting through the Agent) and notwithstanding the provisions of any instrument evidencing an Obligation, be immediately due and payable without notice or demand upon the occurrence and continuation of any of the following events of default (~~each~~ individually, an ~~"EVENT OF DEFAULT"~~“Event of Default”): (i) ~~shall occur with respect to any Borrower:~~ (a) ~~Such Borrower (i) shall default in~~ any principal payable under this Agreement or any Note or the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default Swing Line Note shall not ~~have been remedied~~ be paid within five (5) ~~Banking Days~~ days after ~~written notice thereof~~ the date on which the same shall have first become due and payable or (b) any reimbursement obligation under any Letter of Credit shall not have been ~~given to such Borrower~~ satisfied by the ~~Operations Agent~~Borrowers immediately upon the same becoming due and payable (except where such Unreimbursed Amount is converted to a Revolving Loan in accordance with Section 2.10.3); or (dii) ~~Such Borrower shall default in the performance of,~~ any interest or ~~compliance with, any material term contained in~~ any other ~~written agreement with~~ sum (except principal) payable to the ~~Operations~~ Agent or any Bank ~~pertaining to this Agreement or such Borrower's Loans~~under any of the Loan Documents shall not be paid punctually on the date on which the same shall have first become due and payable, and such ~~default~~ failure to pay under this clause (ii) shall continue for more than one (1) day after the ~~period~~ earlier of ~~grace, if any, specified therein and~~ the date on which a principal officer of any Borrower shall ~~not~~ have ~~been waived pursuant thereto~~first become aware of such failure to pay or the Agent or any Bank shall have first notified any Borrower of such failure to pay; or (ea) ~~Any representation~~any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in the last paragraph of Section 2.5.1(ii) of this Agreement, or in Sections 5.5 through 5.8, inclusive, 5.14, 5.20, 5.23 through 5.26, inclusive, and 5.29 of this Agreement; or (b) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in Sections 5.9, 5.22, and 5.27 of this Agreement and such failure under this clause (b) shall continue for more than five (5) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or any Bank shall have first notified any Borrower of such failure or breach; or (c) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained herein (other than those specified in clauses (a) and (b) hereof) or in any other Loan Document to which such Borrower is a party and such failure under this clause (c) shall continue for more than thirty (30) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or any Bank shall have first notified such Borrower of such failure or breach; or (iv) any representation or warranty ~~certification or statement made or deemed~~ at any time made by ~~such~~ or on behalf of any Borrower in ~~this Agreement~~ any Loan Document or in any certificate, ~~financial~~ written report or statement furnished to the Agent or ~~other document delivered~~ any Bank pursuant ~~hereto~~ thereto shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made or deemed to have been made; or (fv) ~~Except as otherwise provided in this Section 10.01, such~~ any Borrower or any Subsidiary of any Borrower shall ~~default~~ fail to pay when due, or within any applicable period of grace (not to exceed thirty (30) days), obligations for borrowed money, or fail to observe or perform any term, covenant or agreement contained in any ~~payment due on Indebtedness~~ agreement by which it is bound, evidencing or securing borrowed money, for ~~borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of~~ such ~~Borrower's Total Assets, and such default shall continue for more than the~~ period of ~~grace,~~ time as would permit (including the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage~~obligations issued thereunder to accelerate the maturity thereof; excluding, ~~indenture or other agreement relating thereto~~however, from the operation of this clause, obligations for borrowed money, and ~~any such default shall continue for more than~~ agreements in connection therewith, not exceeding $500,000 in the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessaggregate; or (gvi) ~~Such~~ any Borrower or any Subsidiary of any Borrower shall ~~discontinue its business~~ (~~other than in connection with a permitted merger~~ a) apply for or ~~consolidation of such Borrower) or shall make an assignment for~~ consent to the ~~benefit of creditors~~appointment of, or ~~shall fail~~ the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) be generally ~~to pay~~ not paying its debts as such debts become due, ~~or shall apply~~ (c) make a general assignment for ~~or consent to~~ the ~~appointment~~ benefit of ~~or taking possession by a trustee~~its creditors, ~~receiver or liquidator~~ (~~or other similar official~~d) ~~of such Borrower or any substantial part of the property or assets of such Borrower or shall~~ commence a voluntary case ~~or have an order for relief entered against it~~ under the ~~federal bankruptcy laws,~~ United States Bankruptcy Code (as now or hereafter ~~constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than~~ in ~~connection with a permitted merger or consolidation of such Borrower~~effect); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.,

Appears in 1 contract

Samples: Revolving Credit Agreement (COURIER Corp)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Any Borrower ~~(i)~~ shall default in the payment of principal of or interest on the Revolving Credit Note or any Revolving Credit Loan, ~~interest accrued thereon~~ or any other fee due ~~hereunder after the same becomes due and payable~~hereunder, whether at maturity or ~~by acceleration or otherwise, or (ii) shall default in~~ at a date fixed for the payment of any ~~other amount due hereunder after~~ installment or prepayment thereof or otherwise, and in the ~~same becomes due and payable~~case of any such fee payment default, such default shall continue for a period of three (3) Business Days following the date of such default; or (b) ~~Such~~ Any Borrower shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a) or 9.01(b~~6.2(g), 6.2(h), 6.2(i), 6.3, 6.9, 6.10, 6.14 (a) and ~~such default shall have continued for more than three (3) Banking Days~~7.1 to and including 7.14, or ~~such~~ 8; or (c) Any Borrower shall default in the performance of or compliance with any ~~term contained in Sections 8.02(d)~~term, ~~8.02(e)~~condition, ~~8.02(g), 8.05, 9.02, 9.03~~ covenant or ~~9.04; or~~ agreement (~~c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ other than those ~~expressly referred~~ listed in 9.1(b)) to in be performed or observed by it under this ~~Section 10.01,~~ Credit Agreement or under any other Loan Document and such default shall ~~not have been remedied within five~~ continue for a period of ten (510) ~~Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~days or more; or (d) ~~Such Borrower shall default in the performance of,~~ Any representation or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty ~~certification or statement made or deemed~~ made by ~~such~~ any Borrower ~~in this Agreement~~ herein or ~~in any certificate, financial statement or other document delivered~~ pursuant hereto shall prove to have been false or incorrect in any material respect when made or when deemed to have been made; or (fe) ~~Except as otherwise provided in this Section 10.01, such~~ Any Borrower or any Subsidiary shall default in (i) the payment of any ~~payment due on~~ Indebtedness ~~for~~ in respect of borrowed money (other than the Revolving Credit Loans), any Capitalized Lease or the deferred purchase price of ~~property,~~ any property (which in each case shall not include the ~~aggregate outstanding principal amount~~ Borrowers' accounts payable incurred in the ordinary course of ~~which is in excess of five percent (5%~~the Borrowers' business) ~~of such Borrower's Total Assets,~~ and such default (A) shall continue ~~for more than the period~~ after giving effect to any applicable grace periods and (B) shall be in respect of ~~grace, if any, applicable thereto~~ an aggregate amount of principal (whether or not due) and ~~shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ accrued interest exceeding $250,000; or in (ii) the performance of or compliance with any term of any ~~evidence of~~ agreement or instrument relating to such Indebtedness ~~or of any mortgage, indenture or other agreement relating thereto,~~ and ~~any~~ such default (A) shall ~~continue for more than~~ continue, without having been duly cured, waived or consented to, beyond the period of grace, if any, specified ~~therein~~ in such agreement or instrument, and ~~shall not have been waived pursuant thereto and~~ (B) shall permit the ~~holder~~ acceleration of such Indebtedness prior to ~~declare such Indebtedness due and payable before~~ its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (gf) ~~Such~~ Except as permitted by 6.3 (a) or 7.5, any Borrower or any Subsidiary shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of any Borrower or such ~~Borrower~~ Subsidiary or any substantial part of the property of any Borrower or ~~assets of~~ such ~~Borrower~~ Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any Borrower or any Subsidiary shall take any action ~~shall be taken~~ to dissolve or liquidate any Borrower or such ~~Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~Subsidiary; or (hg) If, within sixty (60) days after the commencement against ~~such~~ any Borrower or any Subsidiary of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of any Borrower and such ~~Borrower~~ Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such~~ any Borrower or any Subsidiary or any substantial part of the property of any Borrower or such ~~Borrower~~ Subsidiary, such appointment shall not have been vacated; or (ih) A final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower~~any or all of the Borrowers and its Subsidiaries, exceeds an ~~amount in the~~ aggregate ~~equal to five percent (5%)~~ of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $250,000 shall be rendered against ~~such~~ any Borrower or any Subsidiary and if, within ~~thirty~~ sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty~~ sixty (3060) days after the expiration of any such stay, such judgment shall not have been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of any Borrower or any Subsidiary shall have been seized in satisfaction thereof; or (i) Any Borrower or any Subsidiary loses, fails to keep in force, suffers the termination or revocation of or terminates, forfeits or suffers an amendment to any License which would have a material adverse effect on the operations of such Borrower or such Subsidiary; or (j) ~~Such Borrower or any member of the Controlled Group~~ There shall ~~fail to pay when due an amount or amounts aggregating~~ have occurred a Change in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Control; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing If with respect to ~~such defaulting~~ any Employee Benefit Plans or Multiemployer Plans, there shall occur any of the following which could reasonably be expected to have a material adverse effect on the financial condition of any Borrower, : (i) in the ~~case~~ violation of any ~~Event~~ of ~~Default specified in paragraphs (g) and (h) above,~~ the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal~~ provisions of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and ERISA; (ii) in the ~~case~~ loss by such a plan intended to be a Qualified Plan of ~~any other Event of Default specified above, either or both~~ its qualification under Section 401(a) of the ~~following actions may be taken:~~ Code; (iii) the ~~Operations Agent may, and upon the written or telephonic (confirmed in writing) request~~ incurrence of ~~the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal~~ liability under Title IV of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.ERISA;

Appears in 1 contract

Samples: Revolving Credit Agreement (Dynamics Research Corp)

Events of Default; Acceleration. If any of the following events ------------------------------- (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Borrowers shall ~~default in the payment of~~ fail to pay any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment: (b) ~~Such Borrower~~ if the Borrowers shall ~~default in the performance~~ fail to pay any interest, Commitment Fees, Letter of ~~or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~Credit Fees, or ~~such Borrower shall default in the performance of or compliance with~~ any ~~term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ other ~~than those expressly referred to in this Section 10.01, and such default shall not have been remedied~~ fees within five (5) ~~Banking~~ Business Days after the same shall become due and payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (c) if the Borrowers shall fail to comply with its covenants contained in (S)(S)7, 8, or 9 hereof; (d) if the Borrowers shall fail to perform any term, covenant or agreement herein contained or contained in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) within thirty (30) Business Days after written notice ~~thereof shall have~~ of such failure has been given to ~~such Borrower~~ Borrowers by the ~~Operations~~ Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or; (e) ~~Any representation,~~ if any representation or warranty ~~certification or statement made or deemed made by such Borrower~~ contained in this Agreement or in any ~~certificate, financial statement~~ document or ~~other document~~ instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement shall prove to have been false ~~or incorrect~~ in any material respect upon the date when ~~made; or~~made or repeated; (f) ~~Except as otherwise provided in this Section 10.01, such~~ if any Borrower shall ~~default in~~ (i) fail to pay at maturity, or within any ~~payment due on Indebtedness~~ applicable period of grace, any obLigation for borrowed money or ~~the deferred purchase price of property~~(ii) fail to observe or perform any material term, ~~the aggregate outstanding principal~~ covenant or agreement contained in any agreement by which it is bound evidencing or securing borrowed money in an amount ~~of which is~~ in excess of ~~five percent (5%) of~~ $250,000 for such ~~Borrower's Total Assets, and such default shall continue for more than the~~ period of ~~grace~~time as would, or would have permitted (assuming the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof; (g) ~~Such~~ if any Borrower ~~shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become ~~due,~~ due or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of such Borrower or of any substantial part of the ~~property or~~ assets of such Borrower or ~~shall commence a~~ commences any case or ~~have an~~ other proceeding relating to such Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against such Borrower and such Borrower indicates its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of such Borrower in an involuntary case under ~~the federal~~ Federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, and such decree or ~~any other applicable federal~~ order remains in effect for more than 30 days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orconsecutive; (i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against any Borrower which, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged, against ~~such Borrower,~~ the Borrower and any Subsidiary exceeds ~~an amount~~ in the aggregate ~~equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days~~ $100,000 after ~~entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of~~ taking into account any ~~such stay, such judgment shall not have been discharged; or~~insurance coverage; (j) ~~Such~~ with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any Borrower ~~or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay~~ to the PBGC or the Plan in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to ~~a Plan under Title IV of ERISA~~administer such Plan; or a ~~notice of intent~~ trustee shall have been appointed by the United States District Court to ~~terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by~~ administer such ~~Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing~~Plan; or the PBGC shall ~~institute~~ have instituted proceedings ~~under Title IV of ERISA~~ to terminate ~~or to cause a trustee to be appointed to administer any~~ such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Plan; or (k) ~~Such Borrower~~ if any of the Loan Documents shall ~~cease to~~ be ~~an investment management company (~~canceled, terminated, revoked or ~~a Portfolio thereof) registered under~~ rescinded otherwise than in accordance with the ~~Investment Company Act~~terms thereof or with the express prior written agreement, consent or approval of the Lenders, or ~~such Borrower's registration under the Investment Company Act~~any action at law, or ~~that~~ suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any ~~Borrower Agent of such~~ Borrower, or any of its stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall ~~lapse~~ make a determination that, or ~~be suspended~~issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; then, ~~and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in~~ the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority ~~Banks~~ Lenders shall, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Borrowers declare all amounts owing with respect to this Agreement, the ~~principal of~~ Notes, and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents, and all Reimbursement Obligations to be be, and they shall thereupon forthwith ~~due~~ mature and ~~payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, that in the event of any Event of Default specified in (S)(S)12(g) or 12(h) hereof, all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent. Upon demand by the Agent after the occurrence of any Event of Default, ~~and/or (B) terminate~~ the ~~Commitments~~ Borrowers shall immediately provide to the Agent cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters of Credit outstanding to be held by the Agent as ~~to such defaulting Borrower, whereupon~~ collateral security for the ~~Commitments~~ Obligations. In case any one or more of the ~~Banks~~ Events of Default shall have occurred and be continuing, and whether or not the Agent shall have accelerated the maturity of the Loans pursuant to ~~make Committed Credit~~ the foregoing, the Lenders, if owed any amount with respect to the Loans may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the Obligations to the Lenders and the Agent hereunder are evidenced, including as permitted by applicable law the obtaining of the ex -- parte appointment of a receiver, and, if such amount shall have become due, by ----- declaration or otherwise, proceed to ~~such defaulting Borrower shall forthwith terminate without~~ enforce the payment thereof or any other ~~notice~~ legal or equitable right of the Lenders. No remedy herein conferred upon the Agent, the Lenders or the holder of the Notes is intended to be exclusive of any ~~kind~~ other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Multicurrency Revolving Credit Agreement (United States Filter Corp)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT~~ EVENTS OF DEFAULT") shall ~~occur with respect to any Borrower:~~ occur: (a) ~~Such Borrower~~ either of the Borrowers shall fail to pay when due and payable any principal of or interest on the Loan or any other sum due under any of the Loan Documents; (b) either of the Borrowers shall fail to perform any term, covenant or agreement contained in Section 9 hereof; (c) either of the Borrowers or the Guarantor shall fail to perform any other term, covenant or agreement contained in the Loan Documents after the Bank has given notice of such failure to the Borrowers; (d) any representation or warranty of the Borrowers or any of their Subsidiaries or of the Guarantor in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (e) either of the Borrowers or any of their Subsidiaries or the Guarantor shall be in default under any agreement or agreements evidencing Indebtedness owing to (i) ~~shall default in~~ the ~~payment~~ Bank or any affiliates of ~~principal of any Loan, interest accrued thereon or fee due hereunder after~~ the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise,~~ Bank or (ii) ~~shall default in the payment of~~ any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred Indebtedness to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretothird party; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) ~~Except as otherwise provided~~ any of the Loan Documents shall cease to be in ~~this Section 10.01~~full force and effect, ~~such Borrower shall default in~~ (g) the Borrowers or any ~~payment due on Indebtedness for borrowed money~~ of their Subsidiaries or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Guarantor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment of or taking possession by~~ subject of, an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or ~~if any action shall be taken to dissolve~~ proceeding, such case or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If,~~ proceeding is not dismissed within sixty (60) days ~~after~~ following the commencement ~~against such Borrower~~ thereof, or (v) shall be the subject of a an order for relief in an involuntary case under ~~the~~ federal bankruptcy ~~laws, as now or hereafter constituted,~~ law; (h) either of the Borrowers or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations of their Subsidiaries or the ~~business of such Borrower stayed, or if the stay of any such order or proceeding~~ Guarantor shall ~~thereafter~~ be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedunable to pay their respective debts as they mature; or (i) A there shall remain undischarged for more than thirty (30) days any final judgment ~~which~~or execution action against either of the Borrowers or any of their Subsidiaries or the Guarantor that, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower claims and ~~if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or~~ execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans actions against such Borrower or ~~any member~~ such Subsidiaries or the Guarantor exceeds $50,000 in the aggregate; (j) the Guarantor shall cease to own legally or beneficially one hundred percent (100%) or more of the ~~Controlled Group to enforce Sections 515 or 4219(c)(5)~~ voting stock of ~~ERISA; or~~ Discas, Inc. on a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromfully diluted basis, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) ~~Such Borrower~~ Discas, Inc. shall cease to be own legally or beneficially sixty-eight and eight-tenths percent (68.8%) or more of the voting stock of Discas Recycled Products Corporation on a fully diluted basis, (l) the CDA Guarantee Certificate shall have terminated or (m) the Borrower shall fail to provide the Bank with (i) evidence satisfactory to the Bank that DED has made subordinated loans and grants to the Borrowers in an ~~investment management company~~ aggregate amount equal to or greater than $270,000 on terms and conditions satisfactory to the Bank and (ii) a fully executed copy of the DED Subordination Agreement, in each case on or ~~a Portfolio thereof) registered under the Investment Company Act~~before July 1, 1993; THEN, or ~~such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and~~ at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clause (g) ~~and~~ or (h~~) above~~), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated~~ entire unpaid principal amount of the Loan, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the ~~principal of and accrued interest on the Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Borrowers; and (2) In the case of any Event of Default other than (g) and (h), ~~and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon~~ Bank may declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loan, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Credit Agreement (Discas Inc)

Events of Default; Acceleration. If any one or more of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ if default shall ~~default~~ be made by the Company in the due and punctual payment of any principal of or premium, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when and as the same ~~becomes~~ shall become due and payable, whether at maturity or a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or~~; (b) ~~Such Borrower~~ if default shall ~~default~~ be made in the ~~performance~~ due and punctual payment of ~~or compliance with~~ any ~~term contained in Sections 9.01(a) or 9.01(b)~~ interest on any Note when and as such interest shall become due and payable, and such default shall have continued for ~~more than three (3) Banking Days, or such Borrower shall default in the performance~~ a period of ~~or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~5 days; (c) ~~Such Borrower~~ if default shall ~~default~~ be made by Seagull in the ~~performance~~ due and punctual payment of any principal or ~~compliance with~~ premium, if any, on any ~~term contained herein other than those expressly referred to~~ Intercompany Note when and as the same shall become due and payable, whether at maturity or a date fixed for prepayment or by declaration or otherwise; (d) if default shall be made by Seagull in ~~this Section 10.01~~the due and punctual payment of any interest on any Intercompany Note when and as such interest shall become due and payable, and such default shall ~~not~~ have ~~been remedied within five~~ continued for a period of 5 days; (5e) ~~Banking Days~~ if default shall be made by the Company in the performance or observance of any term contained in Section 9.2, 9.3, 9.4(b), 9.4 (c) or 10 (other than immaterial defaults under Section 10.2, 10.4 and 10.5); (f) if default shall be made by the Company in the performance and observance of any term and provision of Section 10, other than those referred to above in this Section 11.1, and if capable of being remedied, such default shall continue for 30 days; (g) if default shall be made in the performance or observance of any term contained in this Agreement (other than those referred to above in this Section 11.1), and such default shall have continued for a period of 30 days after written notice thereof to the Company by the holder of any Note; (h) if default shall be made by Seagull in the performance or observance of any term contained in Section 5 of the Inducement Agreement (other than immaterial defaults under Section 5.1, 5.2, 5.4 and 5.5); (i) if default shall be made by Seagull in performance or observance of any term contained in Section 5 of the Inducement Agreement, other that those referred to above in this Section 11.1., and such default shall have continued for a period of 30 days; (j) if default shall be made by Seagull in the due and punctual payment of the price for natural gas under the Gas Sale Contract and such default shall have continued for a period of 90 days after the end of the quarterly fiscal period in which such default occurred; (k) if any representation made by or on behalf of the Company or Seagull in this Agreement or the Inducement Agreement or in any certificate, report or other instrument delivered under or pursuant to any term hereof or thereof shall prove to have been false or incorrect in any material respect on the date as of which made; (l) if Seagull shall fail to perform or comply with any term of the Seagull Documents other than those referred to above in this Section 11.1 and such default shall have continued for a period of 30 days after written notice thereof to the Company by the holder of any Note; (m) if the Company or any Subsidiary shall (i) be generally not paying its debts as they become due, (ii) file, or consent by answer or otherwise to the filing against it of, or fail to deny the material allegations of or to contest, a petition for relief or reorganization or arrangement or any other petition in bankruptcy or insolvency law or other act for the relief or aid of debtors of any jurisdiction, (iii) make an assignment for the benefit of its creditors, (iv) consent to or acquiesce in the appointment of a custodian, receiver, liquidator, fiscal agent, trustee or other officer with similar powers of itself or themselves or of the whole or any substantial part of its properties and assets, (v) be adjudicated insolvent or a bankrupt, or (vi) take corporate action for the purpose of any of the foregoing; (n) if a court or governmental authority of competent jurisdiction shall enter an order, judgment or decree appointing, without the consent or the acquiescence of the Company or a Subsidiary, as the case may be, a custodian, receiver, liquidator, fiscal agent, trustee or other officer with similar powers of the Company or such Subsidiary or of the whole or any substantial part of its properties and assets, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the reorganization, arrangement, composition, readjustment, dissolution, winding-up, liquidation or similar relief of the Company or such Subsidiary, or if any petition for any such relief shall be filed against the Company or such Subsidiary and such petition, order, judgment or decree shall not be dismissed or discharged within 60 days; (o) if, under the provisions of any other law for the relief or aid of debtors, any court or competent jurisdiction shall assume custody or control of the Company or any Subsidiary or of the whole or any substantial part of its properties and assets and such custody or control shall remain unterminated or unstayed for an aggregate of 60 days (whether or not consecutive) from the date of assumption of such custody or control; (p) if final judgment for the payment of money in excess of $500,000 shall be rendered by a court of record against the Company or any Subsidiary and the Company or such Subsidiary shall not (i) within 60 days from the date of entry thereof, discharge the same or provide for its discharge in accordance with its terms or procure a stay of execution thereof, and (ii) if execution of such judgment shall be stayed, within such period of 60 days or such longer period during which execution of such judgment shall have been ~~given~~ stayed, appeal therefrom and cause the execution thereof to be stayed during such ~~Borrower by~~ appeal, or, within 60 days after the ~~Operations Agent~~expiration of any such stay or the denial of such appeal, discharge the same or provide for its discharge; or (dq) ~~Such Borrower~~ if the Company or any Subsidiary shall default (as principal or as guarantor or other surety) in the ~~performance of~~payment of any principal of or premium, if any, or ~~compliance with~~interest on any Indebtedness for borrowed money (other than the Notes), or if any ~~material term contained~~ event shall occur or condition shall exist in respect of any ~~other written agreement with~~ such Indebtedness or under any evidence of any such Indebtedness, or of any mortgage, indenture or Other Agreements relating thereto which would permit or shall have cased the ~~Operations Agent or any Bank pertaining to this Agreement or~~ acceleration of the payment of such ~~Borrower's Loans~~Indebtedness, and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, Then and in any such ~~event, and~~ event any holder or holders of 25% or more in principal amount of the Notes at the time outstanding may at any time ~~thereafter~~(unless all defaults shall theretofore have been remedied) at its or their option, ~~if any Event of Default~~ by written notice or notices to the Company, declare all the Notes to be due and payable, whereupon the same shall ~~then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g)~~ forthwith mature and ~~(h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically~~ become due and payable together with interest accrued thereon and, with respect to each Series of Notes, to the extent permitted by applicable law, a premium equal to the Make-Whole Premium, without presentment, demand, protest or ~~other notice or formality of any kind~~notice, all of which are hereby ~~expressly~~ waived, ~~and (ii) in~~ provided that during the ~~case~~ existence of ~~any other~~ an Event of Default ~~specified above~~described in subdivision (a) of this Section 11, ~~either~~ then, irrespective of whether the holder or ~~both~~ holders of 25% or more in principal amount of Notes then outstanding shall have declared all the Notes to be due and payable pursuant to this Section 11, any holder of the ~~following actions may be taken:~~ Notes at the ~~Operations Agent~~ time outstanding (excluding any Notes directly or indirectly owned by the Company or nay of its Subsidiaries or Affiliates) may, ~~and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~at its option, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Company, declare the ~~principal of and accrued interest in respect of~~ Notes then held by such ~~defaulting Borrower's Loans~~ holder to be ~~forthwith~~ due and payable, whereupon the ~~principal of~~ Notes then held by such holder shall forthwith mature and ~~accrued interest in respect of such Loans shall~~ become ~~forthwith~~ due and ~~payable~~ payable, together with interest accrued thereon and with respect to each Series of Notes, to the extent permitted by applicable law, a premium equal to the Make-Whole Premium, without presentment, demand, protest or ~~other notice of any kind~~notice, all of which are hereby ~~expressly waived~~ waived. If a declaration is made pursuant to this Section 11.1 by ~~such Borrower, and/or (B) terminate~~ the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ holder or holders of at least 25% in principal amount of the ~~Banks to make Committed Credit Loans hereunder to~~ Notes, then and in each such ~~defaulting Borrower shall forthwith terminate without any other notice~~ case, the holders of ~~any kind and the percentages~~ at least 75% in aggregate principal amount of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Notes at the time outstanding may, by written notice or notices to the Company, rescind and annul such declaration and the consequences thereof, provided that at the time such declaration is annulled and rescinded, (i) no judgment or decree has been entered for the payment of any moneys due pursuant to the Notes or this Agreement, (ii) all arrears of interest upon all the Notes and all other sums payable under the Notes and under this Agreement (except any principal or interest on the Notes which has become due and payable solely by reason of such ~~termination~~declaration under this Section 11.1) shall have been duly paid, and (iii) each and every other default and Event of Default shall have been remedied, and provided, further, that no such rescission and annulment shall extend to or affect any subsequent default or Event of Default or impair any right consequent thereon.

Appears in 1 contract

Samples: Note Agreement (Seagull Energy Corp)

Events of Default; Acceleration. ~~If any of the~~ The following events ~~(each an~~ shall constitute "~~EVENT OF DEFAULT") shall occur with respect to any Borrower~~Events of Default" hereunder: (a) ~~Such Borrower (i)~~ If the Company shall ~~default in~~ fail to pay when due after a 10-day grace period the ~~payment of~~ principal of ~~any Loan,~~ and/or accrued interest ~~accrued thereon~~ on this Note or ~~fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of~~ any other amount ~~due hereunder after the same becomes due and payable; or~~payable under this Note; (b) ~~Such Borrower shall default~~ A material breach by the Company of any of its representations, warranties, covenants or agreements made in this Note that is not cured within thirty (30) days following receipt by Company of written notice specifying in detail the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orbreach; (c) ~~Such Borrower shall default in~~ If proceedings under any bankruptcy or insolvency law are commenced by the ~~performance of~~ Company, or ~~compliance with~~ if proceedings under any ~~term contained herein other than those expressly referred to in this Section 10.01,~~ bankruptcy or insolvency law are commenced against the Company and such ~~default shall~~ proceedings are not ~~have been remedied~~ dismissed within ~~five (5) Banking Days after written notice thereof shall have been given to such Borrower by~~ 30 days of commencement thereof, or if a general assignment for the ~~Operations Agent~~benefit of creditors of the Company is made or if a trustee or receiver of the Company's property is appointed; or (d) ~~Such Borrower~~ If the Company shall ~~default in the performance of~~adopt, or ~~compliance with~~agree to adopt, ~~any material term contained in any other written agreement with~~ a plan of liquidation or dissolution of the ~~Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~Company. Upon the occurrence of an Event of Default, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturitythen, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, ~~if any~~ and in each and every such case, unless such Event of Default shall ~~then~~ have been waived in writing by the Holder (which waiver shall not be ~~continuing with respect~~ deemed to ~~such defaulting Borrower, (i~~be a waiver of any subsequent default) at the option of the Holder and in the ~~case of any Event of Default specified in paragraphs (g) and (h) above~~Holder's sole discretion, the ~~Commitments as~~ Holder may, upon written notice to ~~such defaulting Borrower shall thereupon automatically be terminated and~~ the Company, declare the unpaid principal amount of ~~and~~ this Note, accrued interest ~~on the Loans shall automatically become~~ thereon and all other amounts payable under this Note immediately due and ~~payable~~ payable, without presentment, demand, protest or ~~other~~ notice ~~or formality~~ of any kind, all of which are hereby expressly waived, anything herein or in any note or other instruments contained to the contrary notwithstanding, and ~~(ii)~~ the Holder may immediately, and without expiration of any further period of grace, enforce any and all of the Holder's rights and remedies provided herein or any other rights or remedies afforded by law; provided, however, that in the case of ~~any other~~ an Event of Default ~~specified~~ described in Section 7(c) above, ~~either or both~~ then the unpaid principal amount of ~~the following actions may be taken: the Operations Agent may~~this Note, ~~and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and~~ accrued interest ~~in respect of such defaulting Borrower's Loans to~~ thereon and other amounts payable under this Note shall be ~~forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without ~~presentment, demand, protest~~ any notice or other ~~notice of any kind, all of which are hereby expressly waived~~ action by ~~such Borrower, and/or (B) terminate~~ the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationHolder.

Appears in 1 contract

Samples: Promissory Note (Green Mountain Capital Inc.)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Company shall ~~default in the payment of~~ fail to pay any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such Borrower~~ if the Company shall ~~default in~~ fail to pay any interest on the ~~performance~~ Loans, Facility Fee, or other sums due hereunder or under any of the Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or ~~compliance with~~ any ~~term contained in Sections 9.01(a)~~ accelerated date of maturity or ~~9.01(b)~~ at any other date fixed for payment, and such ~~default~~ failure shall ~~have continued~~ remain uncured for ~~more than~~ three (3) ~~Banking~~ Business Days~~, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~; (c) ~~Such Borrower~~ if the Company shall ~~default~~ fail to comply with its covenants contained in ~~the performance of~~ sec. 6 or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or7 hereof; (d) ~~Such Borrower~~ if the Company shall ~~default~~ fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b) and (c) above) for 15 days after written notice of such failure has been given to the ~~performance of, or compliance with, any material term contained in any other written agreement with~~ Company by the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank; (e) ~~Any representation,~~ if any representation or warranty ~~certification~~ of the Company or ~~statement made or deemed made by such Borrower~~ the Parent in this Agreement or any other Loan Document or in any ~~certificate, financial statement~~ document or ~~other document~~ instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement or any other Loan Document shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (f) ~~Except as otherwise provided in this Section 10.01~~if the Company or any of its Subsidiaries or the Parent shall fail to pay at maturity, ~~such Borrower shall default in~~ or within any ~~payment due on Indebtedness~~ applicable period of grace, any obligation for borrowed money or ~~the deferred purchase price~~ credit received or in respect of ~~property, the aggregate outstanding principal amount of which is~~ capitalized leases in excess of ~~five percent (5%)~~ $100,000 in aggregate principal amount, or fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such borrowed money or credit received or in respect of any capitalized leases for such ~~Borrower's Total Assets, and such default shall continue for more than the~~ period of ~~grace,~~ time as would permit (assuming the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof; (g) ~~Such Borrower shall discontinue~~ if the Company or any of its ~~business (other than in connection with a permitted merger~~ Subsidiaries or ~~consolidation of such Borrower) or shall make~~ the Parent makes an assignment for the benefit of creditors, or ~~shall fail generally~~ admits in writing its inability to pay or fails to pay its debts as ~~such debts~~ they mature or become due, or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such Borrower~~ the Company or any of its Subsidiaries or the Parent or of any substantial part of the ~~property or~~ assets of the Company or any of its Subsidiaries or the Parent under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such ~~Borrower~~ petition or ~~shall commence a~~ application is filed or any such case or ~~have an~~ other proceeding is commenced against the Company or any of its Subsidiaries or the Parent and the Company or any of its Subsidiaries or the Parent indicates its approval thereof, consent thereto or acquiescence therein; (h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Company or any of its Subsidiaries or the Parent bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Company or any Subsidiary or the Parent in an involuntary case under ~~the federal~~ Federal (or equivalent Canadian) bankruptcy ~~laws,~~ laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or; (i) A if there shall remain in force, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Company or any of its Subsidiaries which, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged, against such ~~Borrower,~~ Person(s) exceeds ~~an amount~~ in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or$50,000; (j) ~~Such Borrower or any member of~~ if the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower Company shall cease to be duly registered as an "investment adviser" under the Investment Advisers Act or under the applicable laws of any state in which such registration is required in connection with the investment advisory business of the Company or the Company shall be enjoined, barred or prohibited from acting as an investment ~~management~~ adviser to any investment company ~~(or a Portfolio thereof)~~ registered under the Investment Company ~~Act~~Act or to any other client; or Mackenzie Funds Distribution shall cease to be duly registered as a broker/dealer under the Securities Exchange Act of 1934 or under the blue sky or securities laws of any state or other jurisdiction or Mackenzie Funds Distribution shall be enjoined, barred or prohibited from acting as a broker/dealer or as an underwriter or distributor of any securities or class of securities; or any other registration, qualification, license, permit, approval or authorization of the Company or any of its Subsidiaries shall cease to be in effect or shall be withdrawn, revoked or suspended, if, in any such ~~Borrower's registration under~~ instance, singly or in the aggregate, the same would have a material adverse effect upon the financial condition, business, operations or prospects of the Company and its Subsidiaries; (k) if the Parent shall own, either directly or through one or more Subsidiaries, less than 51% of the outstanding voting stock of the Company on a fully diluted basis or if the Company shall own less than 100% of the outstanding capital stock of Mackenzie Funds Distribution on a fully diluted basis; or (l) if any 12b-l Plan or 12b-l Plan distribution agreement between Mackenzie Funds Distribution and any 12b-l Fund is terminated or amended in any way which reduces the rate or amount of payments payable to Mackenzie Funds Distribution thereunder or if any advisory agreement between the Company and any registered investment company (as defined in the Investment Company Act, ) is terminated or ~~that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and~~ amended in any ~~such event, and at any time thereafter, if any Event~~ way which reduces the rate or amount of ~~Default shall then be continuing with respect~~ payments payable to ~~such defaulting Borrower, (i) in~~ the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.Company thereunder;

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Mackenzie Investment Management Inc)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ The Borrower ~~(i)~~ shall default in the payment of principal of or interest on the Advances or any ~~Loan, interest accrued thereon or~~ other fee due hereunder ~~after~~ when the same becomes due and payable, whether at maturity or ~~by acceleration or otherwise, or (ii) shall default in~~ at a date fixed for the payment of any ~~other amount due hereunder after the same becomes due and payable~~installment or prepayment thereof or by declaration, acceleration or otherwise (a "Payment Default"); or (b) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a)~~ Section 4 or ~~9.01(b) and~~ Section 5 and, with respect to terms contained in Section 4 or 5, to the extent any default is susceptible of remedy or cure, the Borrower have failed to remedy or cure any such default within twenty days after written notice thereof shall have been given to the Borrower by the Lender, provided further that if such default cannot be remedied or cured, then such default shall ~~have continued for more than three (3) Banking Days, or such Borrower shall default in~~ be deemed an Event of Default as of the ~~performance~~ date of ~~or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~its occurrence; or; (c) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this Section ~~10.01,~~ 6 and such default shall not have been remedied within ~~five (5) Banking Days~~ twenty days after written notice thereof shall have been given to ~~such~~ the Borrower by the ~~Operations Agent~~Lender, provided that if such default cannot be remedied or cured, then such default shall be deemed an Event of Default as of the date of its occurrence; or (d) ~~Such~~ The Borrower, any Subsidiary, shareholder or other Affiliate of the Borrower which is a party to the Security Agreement shall default in the performance ~~of,~~ of or compliance ~~with,~~ with any ~~material~~ term contained in the Security Agreement or in the performance of or compliance with any term or provision contained in any other Loan Document, the Subscription Agreement and Investment Representation Agreement entered into as of the date hereof (the "Subscription Agreement") or any other written agreement with the ~~Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~Lender, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any ~~representation,~~ representation or warranty ~~certification or statement made or deemed~~ made by ~~such~~ the Borrower ~~in this~~ herein (including representations and warranties remade by the Borrower by submission of a borrowing request) or by the Borrower or any other party to the Security Agreement or in any ~~certificate, financial statement~~ other Loan Document therein or ~~other document delivered~~ pursuant hereto or thereto shall prove to have been false or incorrect in any material respect when made; or (f) ~~Except as otherwise provided in this Section 10.01, such~~ The Borrower or any Subsidiary shall default in any payment due on any Indebtedness ~~for~~ in respect of any Subordinated Debt, or any other borrowed money where the aggregate exceeds $50,000 or any lesser aggregate balance where such failure to pay could result in a Material Adverse Effect, or any Capital Lease or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.with

Appears in 1 contract

Samples: Loan Agreement (Urban Cool Network Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower shall fail to pay (i) ~~shall default in the payment of~~ when due and payable any principal of ~~any Loan,~~ or interest ~~accrued thereon or fee due hereunder after~~ on the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise,~~ Revolving Credit Loans or (ii) ~~shall default in the payment of~~ any other ~~amount~~ sum due ~~hereunder after~~ under any of the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loan Documents within five (5) ~~Banking Days~~ days following written demand for payment of the same; (b) the Borrower or the Guarantor shall fail to perform any term, covenant or agreement contained in Section 8 or 9 (other than the covenant set forth in ss.9(a) hereof); (c) the Borrower shall fail to perform the covenant set forth in ss.9(a) hereof and such failure shall continue for thirty (30) days after the Bank has given written notice ~~thereof shall have been given~~ of such failure to ~~such~~ the Borrower ~~by the Operations Agent~~pursuant to ss.18 hereof; or (d) ~~Such~~ the Borrower or the Guarantor or any Additional Guarantor shall ~~default~~ fail to perform any other term, covenant or agreement contained in the ~~performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans,~~ Loan Documents and such ~~default~~ failure shall continue for ~~more than~~ thirty (30) days after the Bank has given written notice of such failure to the Borrower; provided, that if any such failure is of a nature that it cannot be corrected within such thirty (30) day period but is capable of ~~grace~~being corrected within an additional twenty (20) period, ~~if any, specified therein and~~ such failure shall not ~~have been waived pursuant thereto~~constitute an Event of Default hereunder so long as (i) the Borrower or the Guarantor or such Additional Guarantor, as applicable, institutes reasonable curative action within such initial period and diligently pursues such action to completion and (ii) such failure shall be fully cured within such additional twenty (20) day period; or (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrower or ~~statement made~~ the Guarantor or ~~deemed made by such Borrower~~ any Additional Guarantor in ~~this Agreement~~ any of the Loan Documents or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made; or (f) ~~Except as otherwise provided~~ the Borrower or the Guarantor or any Additional Guarantor shall be in ~~this Section 10.01~~default beyond the expiration of any applicable grace period under any environmental, ~~such Borrower shall default~~ financial or payment covenant set forth in any ~~payment due on~~ agreement or agreements evidencing Indebtedness ~~for borrowed money~~ owing to the Bank or any affiliates of the ~~deferred purchase price of property, the aggregate outstanding principal amount of which is~~ Bank or other Indebtedness in excess of ~~five percent (5%) of~~ $1,000,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ subject to any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, ~~if any~~(h) the Borrower, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ the ~~holder~~ Guarantor, any Additional Guarantor or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or their respective Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawproceeding, such case ~~shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order~~ or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall is not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, dismissed within thirty (30) days ~~after entry~~ following the commencement thereof, ~~such judgment~~ or (v) shall ~~not have been discharged~~ be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or ~~execution thereof stayed pending appeal,~~ the Guarantor or ~~if, within thirty (30) days after the expiration of~~ any ~~such stay, such judgment~~ Additional Guarantor shall ~~not have been discharged~~be unable to pay its debts as they mature; or (j) ~~Such~~ there shall remain undischarged for more than ten (10) days any final (beyond any applicable appeal period) judgment or execution action against the Borrower or the Guarantor or any ~~member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay~~ Additional Guarantor (not covered by insurance reasonably satisfactory to the ~~PBGC~~ Agent) that, together with other outstanding claims (not covered by insurance reasonably satisfactory to the Agent) and execution actions against the Borrower or ~~to a Plan under Title IV of ERISA~~the Guarantor or such Additional Guarantor exceeds $1,000,000 in the aggregate; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) ~~Such Borrower~~ the Guarantor shall cease to be ~~an investment management company (or a Portfolio thereof) registered under~~ the ~~Investment Company Act, or such Borrower's registration under~~ general partner of the ~~Investment Company Act, or that of~~ Borrower at any ~~Borrower Agent of such Borrower, shall lapse or be suspended;~~ time: then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Borrower, declare all amounts owing with respect to this Agreement, the ~~principal of~~ Revolving Credit Notes and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and the Guarantor; provided that in the event of any Event of Default specified in ss.12.1(h) or 12.1(i), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks ~~to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and~~ or the ~~percentages of~~ Agent or action by the ~~Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after~~ Banks or the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationAgent.

Appears in 1 contract

Samples: Revolving Credit Agreement (Grove Real Estate Asset Trust)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ if the Borrower ~~(i)~~ shall fail to pay the principal owing on any of the Notes or shall default in the payment of any principal obligation under any of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loan Documents when the same ~~becomes~~ shall become due and payable, whether at maturity or at any date fixed for payment or prepayment or by acceleration or otherwise~~, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or~~; (b) ~~Such~~ if the Borrower shall ~~default in~~ fail to pay any interest owing on any of the ~~performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~Notes, or ~~such Borrower~~ any other sums due hereunder or under any of the Loan Documents when the same shall ~~default in the performance of~~ become due and payable, whether at maturity or ~~compliance with~~ at any ~~term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ date fixed for payment or ~~9.04~~prepayment or by acceleration or otherwise; or (c) ~~Such~~ any representation or warranty made in writing by or on behalf of the Borrower ~~shall default~~ or any Guarantor in ~~the performance of~~ any Loan Document to which it is a party or ~~compliance~~ in connection with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by of the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto transactions contemplated hereby shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made or deemed made; or (fd) ~~Except as otherwise provided in this Section 10.01, such~~ if the Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any ~~term~~ term, covenant or provision applicable to it contained in ss.ss.6 or 7 hereof, provided, that with respect to any Lien or Contingent Liability incurred without the consent or voluntary action of ~~any evidence of such Indebtedness or of any mortgage~~the Borrower, ~~indenture or other agreement relating thereto, and any such default shall continue for more than~~ the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs ten (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (6010) days after the ~~commencement against such~~ Borrower receives knowledge of ~~a case under~~ the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business existence of such Lien or Contingent Liability in which to discharge such Lien or Contingent Liability, provided, however, that the Borrower ~~stayed,~~ may contest such Lien or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or Contingent Liability in good faith so long as (i) ~~A final judgment which~~the enforcement thereof is stayed, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the ~~case~~ Borrower has set aside reserves therefor which are adequate under generally accepted accounting principles or has furnished the Bank with security therefor acceptable to the Bank and (iii) such contest does not involve any material risk of foreclosure, sale, forfeiture or loss of, or imposition of any Lien on, other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, than a Lien permitted by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationss.

Appears in 1 contract

Samples: Loan Agreement (Getty Realty Corp /Md/)

Events of Default; Acceleration. If ~~any~~ one or more of the following events (~~each an "EVENT OF DEFAULT"~~herein called “Events of Default”) shall occur ~~with respect~~ for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any ~~Borrower:~~judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (aA) ~~Such Borrower~~ default in the payment of any interest upon the Note when such interest becomes due and payable, and such default shall have continued for a period of fifteen (i15) ~~shall~~ days; or (B) default in the payment of principal of ~~any Loan~~(or prepayment premium, ~~interest accrued thereon or fee due hereunder after~~ if any, on) the Note when and as the same ~~becomes~~ shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6), or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for ~~more than three~~ a period of fifteen (315) ~~Banking Days, or such Borrower shall~~ days; or (C) default in the performance or observance of any other covenant, agreement or ~~compliance with any term~~ condition contained ~~in Sections 8.02(d)~~herein, ~~8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default~~ in the ~~performance~~ Note, the Deed of Trust, the Security Agreement or ~~compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01~~Collateral Documents, or any Event of Default under the Deed of Trust or Default under the Security Agreement shall occur, and such default shall ~~not~~ have ~~been remedied within five~~ continued for a period of thirty (530) ~~Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~days; or (dD) ~~Such Borrower~~ the Company or any Subsidiary shall ~~default~~ not pay when due, whether by acceleration or otherwise, any evidence of Indebtedness of the Company or such Subsidiary (other than the Note), including, without limitation, the Indebtedness of the Company to you evidenced by a certain secured promissory note dated December 18, 1997 in the ~~performance of~~principal amount of $15,000,000.00, and by a certain secured promissory note dated May 10, 1999 in the principal amount of $18,000,000.00, and by a secured promissory note dated December 19, 2003 in the principal amount of $20,000,000.00, respectively, or ~~compliance with,~~ any ~~material term contained in~~ condition or default shall exist under any ~~other written~~ such evidence of Indebtedness or under any agreement ~~with~~ under which the ~~Operations Agent~~ same may have been issued permitting such evidence of Indebtedness to become or ~~any Bank pertaining~~ be declared due prior to ~~this Agreement or such Borrower's Loans~~the stated maturity thereof, and such default shall ~~continue~~ have continued for ~~more than the~~ a period of ~~grace, if any, specified therein and shall not have been waived pursuant thereto~~fifteen (15) days; or (eE) ~~Any representation~~the Company or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, ~~warranty certification~~ as now constituted or ~~statement made~~ hereafter amended, or ~~deemed made by~~ an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such ~~Borrower in this Agreement~~ Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or in hereafter amended; or the Company or any ~~certificate~~Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, ~~financial statement~~ insolvency or other ~~document delivered pursuant hereto shall prove to have been false~~ similar law of the United States of America or ~~incorrect in~~ any ~~material respect when made~~State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or (fF) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ a court of competent jurisdiction shall ~~default in any payment due on Indebtedness~~ enter an order for ~~borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of~~ relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in ~~excess~~ the premises which is not stayed within 60 days from the date of ~~five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than~~ entry thereof adjudging the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityCompany or any Subsidiary as bankrupt or insolvent, or in ordering relief against the ~~performance of~~ Company or ~~compliance with~~ any ~~term~~ Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any ~~evidence~~ other now existing or future bankruptcy, insolvency or other similar law of ~~such Indebtedness~~ the United States of America or any State thereof or of any ~~mortgage~~other country or jurisdiction providing for the reorganization, ~~indenture~~ winding-up or ~~other agreement relating thereto~~liquidation of corporations or an arrangement, ~~and~~ composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of the Company or any ~~such default shall continue for more than~~ Subsidiary or of any substantial part of its property, or ordering the ~~period~~ reorganization, winding-up or liquidation of ~~grace, if any,~~ its affairs; or any involuntary petition against the Company or any Subsidiary seeking any of the relief specified ~~therein and~~ in this clause shall not ~~have been waived pursuant thereto and shall permit the holder~~ be dismissed within 60 days of ~~such Indebtedness to declare such Indebtedness due and payable before~~ its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessfiling; or (gG) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger~~ the Company or ~~consolidation of such Borrower) or~~ any Subsidiary shall make an a general assignment for the benefit of its creditors, ; or the Company or any Subsidiary shall ~~fail generally to pay its debts as such debts become due, or shall apply for or~~ consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, ~~receiver~~ custodian or ~~liquidator (~~similar official of the Company or ~~other similar official)~~ such Subsidiary or of ~~such Borrower~~ all or any substantial part of its property; or the ~~property~~ Company or ~~assets of such Borrower~~ any Subsidiary shall have admitted to its insolvency or inability to pay, or shall ~~commence a case~~ have failed to pay, its debts generally as such debts become due; or ~~have an order for relief entered against it under~~ the ~~federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal~~ Subsidiary or ~~state bankruptcy~~its officers, ~~insolvency~~ directors or ~~other similar law, or if~~ majority stockholders shall take any action ~~shall be taken~~ to dissolve or liquidate the Company or such ~~Borrower~~ Subsidiary (other than ~~in connection with a permitted merger or consolidation of such Borrower~~as contemplated by Section 8.6A); or (hH) ~~If, within sixty (60) days after~~ the ~~commencement~~ rendering against ~~such Borrower~~ the Company or any Subsidiary of a ~~case under~~ final non-appealable judgment, decree or order for the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business payment of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating money in excess of $500,000 ~~which it is obligated to pay to~~ and the ~~PBGC~~ continuance of such judgment, decree or to order unsatisfied and in effect for any period of 60 consecutive days without a ~~Plan under Title IV~~ stay of execution; or (I) the Company or any Subsidiary shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA~~; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities~~ , in an amount in excess of $~~500,000 shall be filed under Title IV of ERISA by such Borrower~~ 10,000, whether or ~~any member of the Controlled Group~~not waived, ~~any plan administrator~~ or ~~any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to~~ (3) terminate or ~~to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary~~ permit the termination of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of an “employee pension benefit plan,” as defined in Section ~~4219(c)(5)~~ 3 of ERISA, ~~with respect to, one or more Multiemployer Plans~~ in a manner which could ~~cause such Borrower or one or more members~~ result in the imposition of a Lien on any property of the ~~Controlled Group~~ Company or such Subsidiary pursuant to ~~incur a current payment obligation~~ Section 4068 of ERISA securing an amount in excess of $~~500,000~~10,000; or (kJ) ~~Such Borrower~~ any representation or warranty made by the Company in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall ~~cease~~ prove to have been false or misleading in any respect as of the date made; or (K) the dissolution of the Company, whether by operation of law or otherwise (other than as contemplated by Section 8.6A); then an amount equal to the Prepayment Price (based on the outstanding principal balance), computed as provided in Section 6.3 (except that, for purposes of such computation, the Prepayment Date shall be deemed to be ~~an investment management company (or a Portfolio thereof) registered under~~ the ~~Investment Company Act, or such Borrower's registration under~~ date upon which the ~~Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any~~ Event of Default shall ~~then be continuing with respect to such defaulting Borrower~~have occurred), ~~(i) in~~ shall at the ~~case~~ option of ~~any Event~~ the holder of ~~Default specified in paragraphs (g) and (h) above,~~ the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically~~ Note immediately become due and payable without ~~presentment,~~ notice or demand, ~~protest or other notice or formality~~ together with accrued interest thereon at the Overdue Interest Rate, provided, however, that upon the occurrence of ~~any kind, all of which are hereby expressly waived, and (ii) in the case of any other~~ an Event of Default ~~specified above~~described in clauses (E), ~~either~~ (F) or ~~both~~ (G) of this Section 10.1, the entire outstanding principal amount of the ~~following actions may be taken:~~ Note, together with accrued interest thereon after default at the ~~Operations Agent may~~Overdue Interest Rate, ~~and upon~~ shall at the ~~written or telephonic (confirmed in writing) request~~ option of the ~~Majority Banks shall, by written notice to such defaulting Borrower (A) declare~~ holder of the ~~principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall~~ Note immediately become ~~forthwith~~ due and payable without ~~presentment,~~ notice or demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 1 contract

Samples: Loan Agreement (Cal Maine Foods Inc)

Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Company shall ~~default in the payment of~~ fail to pay any principal of the Loans, or the Company or any ~~Loan~~Commerce Subsidiary shall fail to pay any Reimbursement Obligation owing by such Person, ~~interest accrued thereon or fee due hereunder after~~ in each case within one (1) day following the date on which the same becomes due and ~~payable~~payable hereunder, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise~~at any other date fixed for payment; (b) if the Company shall fail to pay any interest on the Loans, any Commitment Fee, any Agent's Fee, any Letter of Credit Fee, or ~~(ii) shall default in the payment of~~ any other ~~amount due hereunder after~~ sums, in each case within two (2) days following the date on which the same becomes due and ~~payable; or (b) Such Borrower shall default in~~ payable hereunder, whether at the ~~performance~~ stated date of maturity or ~~compliance with~~ any ~~term contained in Sections 9.01(a)~~ accelerated date of maturity or ~~9.01(b) and such default shall have continued~~ at any other date fixed for ~~more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~payment; (c) ~~Such Borrower~~ if any of the Commerce Companies shall ~~default in the performance of or compliance~~ fail to comply with any ~~term~~ of its covenants contained ~~herein other than those expressly referred to~~ in ~~this Section 10.01~~(S)(S)8 (excluding (S)8.12), 9 and ~~such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or~~10 hereof; (d) ~~Such Borrower~~ if any of the Commerce Companies shall ~~default in the performance of~~fail to perform any term, covenant or ~~compliance with, any material term~~ agreement contained herein or in any of the Loan Documents (other than those specified elsewhere in this (S)11) for fifteen (15) days after written ~~agreement with~~ notice of such failure has been given to the ~~Operations~~ Company by the Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank; (e) ~~Any representation,~~ if any representation or warranty ~~certification or statement made or deemed made by such Borrower~~ of any of the Commerce Companies in this Agreement or in any ~~certificate, financial statement~~ of the other Loan Documents or ~~other~~ in any document or instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement or the Loan Documents shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (f) ~~Except as otherwise provided in this Section 10.01~~if any of the Commerce Companies shall fail to pay when due and payable, ~~such Borrower shall default in~~ or within any ~~payment due on Indebtedness~~ applicable period of grace, any obligations for borrowed money or in respect of capitalized leases, which obligations exceed $1,000,000 in the ~~deferred purchase price of property~~aggregate, ~~the aggregate outstanding principal amount of~~ or fail to observe or perform in any material respect any term, covenant or agreement contained in any material agreement by which it is ~~in excess of five percent (5%) of~~ bound, evidencing or securing borrowed money for such ~~Borrower's Total Assets, and such default shall continue for more than the~~ period of ~~grace,~~ time as would permit (assuming the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof; (g) ~~Such Borrower shall discontinue~~ if any of the Company or its ~~business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ Subsidiaries makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become due, or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such Borrower~~ any of the Company or its Subsidiaries or of any substantial part of the ~~property or~~ assets of ~~such Borrower~~ any of the Company or ~~shall commence a~~ its Subsidiaries or commences any case or ~~have an~~ other proceeding relating to any of the Company or its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against any of the Company or its Subsidiaries and any of the Company or its Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein; (h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Company or its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Company or any Subsidiary of the Company in an involuntary case under ~~the federal~~ Federal bankruptcy ~~laws,~~ laws as now or hereafter constituted; (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against any of the Commerce Companies which, with other outstanding final judgments, undischarged, against the Commerce Companies exceeds in the aggregate $1,000,000; (j) any of the Commerce Companies shall fail to comply with the covenant contained in (S)8.12 hereof for one Business Day (in the case of the Company) or for two Business Days (in the case of any of the Commerce Subsidiaries), after written notice of such failure has been given to the Company by the Agent or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orBank; (hk) Ifwith respect to any Guaranteed Pension Plan, ~~within sixty~~ an ERISA Reportable Event shall have occurred (~~60) days after~~ or in the ~~commencement against such Borrower of~~ event that a ~~case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case~~ Subsidiary shall have been ~~consented~~ acquired with an Employee Benefit Plan subject to or an "accumulated funding deficiency" and such "accumulated funding deficiency" shall not have been ~~dismissed~~ cured within any grace period specified therefore in (S)9.11(b)) and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Company or ~~all orders~~ any ERISA Affiliate to the PBGC or ~~proceedings thereunder affecting~~ such Guaranteed Pension Plan in an aggregate amount exceeding the ~~operations~~ amount provided in (S)9.11(b)(i) or (ii), as applicable, and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or the ~~business~~ PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; (l) if any of ~~such Borrower stayed~~the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or if any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the ~~stay~~ Loan Documents shall be commenced by or on behalf of any ~~such order~~ of the Commerce Companies party thereto or ~~proceeding shall thereafter be set aside~~any of their respective stockholders, or ~~if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower~~ any court or any ~~substantial part~~ other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the ~~property of such Borrower such appointment shall not have been vacated; or~~Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in~~ any of the ~~aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ Commerce Companies shall be ~~rendered against~~ enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such ~~Borrower and if, within~~ order shall continue in effect for more than thirty (30) days ~~after entry thereof~~and such inability to conduct its business shall have a material adverse effect on the business or financial condition of the Commerce Companies taken as a whole, or (ii) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy or other casualty, which, in any such ~~judgment~~ case, causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any of the Company or its Subsidiaries and which has a material adverse effect or the business or financial condition of the Commerce Companies taken as a whole; (n) there shall ~~not~~ occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Commerce Companies if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of such Commerce Company; (o) any of the Commerce Companies shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been ~~discharged~~ brought or ~~execution thereof stayed pending appeal~~threatened against any of the Commerce Companies, ~~or if, within thirty (30) days after~~ a punishment for which in any such case could include the ~~expiration~~ forfeiture of any ~~such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member~~ assets of the ~~Controlled Group shall fail to pay when due an amount or amounts aggregating~~ such Commerce Company having a fair market value in excess of $~~500,000 which it is obligated to pay to the PBGC~~ 1,000,000; (p) any person or ~~to a Plan under Title IV~~ group of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, persons (within the meaning of Section ~~4219(c)(5~~13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of ~~ERISA, with respect to, one~~ 20% or more ~~Multiemployer Plans which could cause~~ of the outstanding shares of common stock of the Company; or, during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such ~~Borrower~~ period shall cease to constitute a majority of the board of directors of the Company; or the Company or one ~~or more members~~ of the ~~Controlled Group~~ Commerce Subsidiaries shall, except as a result of dispositions permitted by (S)9.9(c), cease to ~~incur a current payment obligation in excess~~ own 100% of ~~$500,000~~the capital stock of each of the Commerce Subsidiaries; or (kq) ~~Such Borrower shall cease~~ (i) the Company or any of its Subsidiaries is obligated to ~~be an investment management company (or a Portfolio thereof) registered~~ repurchase Commerce Accounts Receivable arising under the ~~Investment Company Act~~Commerce Accounts Receivable Agreement with Sanwa Business Credit Corporation in an aggregate amount equal to or greater than fifty percent (50%) of the amount of Commerce Accounts Receivable outstanding under such agreement at any time, or ~~such Borrower's registration~~ (ii) a Total Repurchase Event with respect to Commerce Accounts Receivable other than those specified in clause (i) hereof in an aggregate amount equal to or greater than $1,000,000 shall have occurred under one or more of the ~~Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~Commerce Accounts Receivable Agreements; then, and in any such event, ~~and at any time thereafter~~unless the same shall be cured or waived, ~~if any Event~~ the Agent may, and, upon the request of ~~Default shall then be continuing~~ the Majority Banks, shall, by notice in writing to the Company, declare all amounts owing with respect to ~~such defaulting Borrower~~this Agreement and the Notes or the other Loan Documents, ~~(i) in the case of any Event of Default specified in paragraphs (g)~~ and ~~(h) above~~all Reimbursement Obligations to be, ~~the Commitments as to such defaulting Borrower~~ and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become~~ forthwith become, immediately due and payable without presentment, demand, ~~protest or other~~ notice ~~or formality~~ of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice intent to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demandaccelerate, protest or other notice of any kind, all of which are hereby expressly waived by the Company; provided that -------- in the event of any Event of Default specified in (S)(S)11(g) and 11(h) hereof, all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from either of the Agent or any Bank; provided, however, that any amounts representing Reimbursement Obligations shall -------- ------- be held by the Agent as cash collateral pursuant to (S)2A.2(a). In case any one or more of the Events of Default shall have occurred and shall not have been cured or waived, and whether or not the Banks shall have accelerated the maturity of the Loans and Reimbursement Obligations pursuant to the foregoing, any Bank, if such Bank is owed any amount with respect to the Loans or Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law and/or ~~(B) terminate~~ other appropriate proceeding, whether for the ~~Commitments as~~ specific performance of any covenant or agreement contained in this Agreement, any of the other Loan Documents or any instrument pursuant to which the obligations of the Company or any of its Subsidiaries to such ~~defaulting Borrower~~Bank hereunder are evidenced, ~~whereupon~~ including as permitted by applicable law the ~~Commitments~~ obtaining of the ex parte appointment of a -- ----- receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of such Bank. No remedy herein conferred upon any Bank or holder of the Notes is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law. If any one or more of the Events of Default specified in (S)(S)11(g) and (h) shall occur, any unused portion of the Total Commitment shall forthwith terminate and each of the Banks shall be relieved of all further obligations to make ~~Committed~~ Loans, and the Agent shall be relieved of all further Obligations to issue, extend or renew Letters of Credit; if any one or more of the Events of Default specified in this (S)11 (other than those specified in (S)(S)11(g) and (h)) shall occur, then the Agent, upon the request of the Majority Banks, shall, by notice to the Company, terminate the unused portion of the Total Commitment, and upon such notice being given such unused portion of the Total Commitment shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans, and the Agent shall be relieved of all further Obligations to issue, extend or renew Letters of Credit ~~Loans~~ hereunder. If any such notice is given to the Company, the Agent will forthwith furnish a copy thereof to each of the Banks. No termination of the Total Commitment hereunder ~~to such defaulting Borrower~~ shall ~~forthwith terminate without any other notice~~ relieve the Company of any ~~kind and~~ of its existing Obligations to the ~~percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower~~ Banks hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationor elsewhere.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Sterling Commerce Inc)

Events of Default; Acceleration. If any one or more of the following conditions or events (~~each an "EVENT OF DEFAULT"~~“Events of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ default shall ~~default~~ occur in the payment of ~~principal of~~ interest on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, ~~whether at maturity or by acceleration or otherwise, or~~ and such default shall have continued for more than five (ii5) ~~shall default in the payment of any other amount due hereunder after the same becomes due and payable~~days; or (b) ~~Such Borrower~~ default shall occur in the making of any required redemption of any of the Notes as provided in Section 10.1, or in the making of any other payment of principal of any Note or the premium thereon at the expressed or any accelerated maturity date or at any date fixed for redemption; or (c) the Company shall default in the performance of or compliance with any term contained in Sections ~~9.01(a)~~ 11.3, 11.4, 11.5, 11.6 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.0411.11; or (cd) ~~Such Borrower~~ the Company shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this Section ~~10.01,~~ 13 and such default shall not have been remedied within ~~five~~ thirty (530) ~~Banking Days~~ days after the earlier of (i) the day on which the President, Treasurer or a Senior or Executive Vice President first obtains knowledge of such default or (ii) the date on which written notice thereof shall have been given to ~~such Borrower~~ the Company by ~~the Operations Agent~~any holder of any Note; or (de) ~~Such Borrower~~ any representation or warranty made in writing by or on behalf of the Company herein or pursuant hereto or in connection with the consummation of the issuance and delivery of the Notes shall have been false or incorrect in any material respect at the time as of which made; or (f) the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the ~~performance of~~payment of any principal of or premium, if any, or ~~compliance with,~~ interest on any ~~material term contained in any~~ Indebtedness for borrowed money (other ~~written agreement with~~ than the ~~Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans,~~ Notes) the aggregate outstanding principal balance of which shall then exceed $5,000,000 and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; ~~or (e) Any representation, warranty certification~~ or ~~statement made~~ the Company or ~~deemed made by such Borrower in this Agreement or in~~ any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower Subsidiary shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness for borrowed money or of any mortgage, indenture or any other agreement relating ~~thereto,~~ thereto and ~~any~~ the effect of such default ~~shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall~~ is to permit the ~~holder~~ acceleration of the maturity of such Indebtedness for borrowed money prior to ~~declare such Indebtedness due and payable before~~ its stated ~~maturity, unless such Borrower shall be contesting such payment~~ maturity or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on~~ prior to its ~~books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event~~ regularly scheduled dates of ~~Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~payment; or (g) ~~Such Borrower~~ the Company or any Subsidiary shall ~~discontinue~~ commence a voluntary case under the federal bankruptcy laws or take advantage of any insolvency law, or shall admit in writing its ~~business (other than in connection with a permitted merger~~ insolvency or ~~consolidation of such Borrower)~~ its inability to pay its debts as they become due, or shall make an assignment for the benefit of creditors, or shall ~~fail~~ apply for, consent to or acquiesce in the appointment of, or taking possession by, a trustee, receiver, custodian or similar official or agent for itself or any substantial part of its Property, or shall take any corporate action authorizing or seeking to effect any of the foregoing, or shall generally to not pay its debts as ~~such debts~~ they become due~~, or shall apply for or consent to the appointment of or taking possession by~~ ; or (h) a trustee, ~~receiver~~ receiver, custodian or ~~liquidator (~~similar official or agent shall be appointed for the Company or any Subsidiary by a court or other ~~similar official~~governmental authority or agency having jurisdiction in the premises or for any substantial part of its Property, and is not discharged for a period of thirty (30) days from the date of ~~such Borrower~~ its entry, or all or any substantial part of the ~~property or assets~~ Property of ~~such Borrower or shall commence a case or have an order for relief entered against it under~~ the ~~federal bankruptcy laws, as now or hereafter constituted,~~ Company or any ~~other applicable federal~~ Subsidiary is condemned by eminent domain, seized or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of otherwise appropriated by any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedgovernmental authority; or (i) ~~A final judgment which~~the Company or any Subsidiary shall have a court order or decree for relief in any involuntary case under the federal bankruptcy laws entered against it, ~~together with~~ and such court order or decree shall remain undismissed and unstayed for sixty (60) days, or a petition seeking reorganization, readjustment, arrangement, composition, or other ~~outstanding final judgments against such Borrower, exceeds an amount in~~ similar relief as to it under the ~~aggregate equal to five percent (5%)~~ federal bankruptcy laws or any similar law for the relief of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ debtors shall be ~~rendered~~ brought against ~~such Borrower~~ it and ~~if, within thirty~~ shall be consented to by it or shall remain undismissed and unstayed for sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargeddays; or (j) ~~Such Borrower~~ one or ~~any member~~ more final judgments for payment of money exceeding in the ~~Controlled Group shall fail to pay when due an amount or amounts aggregating~~ aggregate $5,000,000 (in excess of ~~$500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000~~ insurance available therefor) shall be ~~filed under Title IV of ERISA by such Borrower~~ rendered against the Company or any ~~member~~ Subsidiary and shall remain undischarged for a period of ~~the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC~~ sixty (60) days during which execution shall ~~institute proceedings under Title IV of ERISA to terminate or to cause a trustee to~~ not be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedeffectively stayed; then, and in ~~any such event, and at any time thereafter, if~~ the event that any Event of Default described in subdivisions (a) through (f), (h) or (j) has occurred and is continuing, any holder or holders of at least 25% in principal amount of the Notes at the time outstanding may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by written notice or notices to the Company, declare all of the Notes to be due and payable, whereupon the same shall forthwith mature and become due and payable, together with premium, if any, and interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived, provided that during the existence of an Event of Default described in subdivision (a) or (b) of this Section 13.1, and irrespective of whether the holder or holders of at least 25% in principal amount of Notes then outstanding have declared all the Notes to be ~~continuing~~ due and payable, any holder of Notes which has not consented to any waiver with respect to such ~~defaulting Borrower~~Event of Default may, ~~(i) in~~ at its option, by written notice to the ~~case~~ Company, declare the Notes then held by such holder to be due and payable, whereupon the same shall forthwith become due and payable, together with premium, if any, and interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived. When any Event of Default ~~specified~~ described in ~~paragraphs~~ subdivisions (g) ~~and~~ or (hi) ~~above~~of Section 13.1 has occurred, ~~the Commitments as to such defaulting Borrower~~ then all outstanding Notes shall ~~thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically~~ immediately become due and payable without presentment, ~~demand, protest~~ demand or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind. Upon the Notes becoming due and payable as a result of any Event of Default as aforesaid, ~~all of which are hereby expressly waived by such Borrower, and/or (B) terminate~~ the ~~Commitments as~~ Company will forthwith pay to ~~such defaulting Borrower, whereupon~~ the ~~Commitments~~ holders of the ~~Banks~~ Notes the entire principal and interest accrued on the Notes and, to ~~make Committed Credit Loans hereunder~~ the extent not prohibited by applicable law, an amount as liquidated damages for the loss of the bargain evidenced hereby (and not as a penalty) equal to the Make-Whole Premium determined as of the date on which the Notes shall so become due and payable. No course of dealing on the part of the holder or holders of any Notes nor any delay or failure on the part of any holder of Notes to exercise any right shall operate as a waiver of such ~~defaulting Borrower~~ right or otherwise prejudice such holder’s rights, powers and remedies. If any holder of any Note shall ~~forthwith terminate without~~ give any notice or take any other action with respect to a claimed default under this Agreement, or if any Person shall give notice of to the Company or take any ~~kind and the percentages~~ other action with respect to a claimed default of the ~~Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after~~ type referred to in subdivision (f) of this Section 13.1, the ~~date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis~~ Company will forthwith give written notice thereof to all holders of the ~~percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect~~ Notes at the time outstanding, describing the notice or action and the nature of ~~such termination~~the claimed default.

Appears in 1 contract

Samples: Note Agreement (Unitil Corp)

Events of Default; Acceleration. If 6.1 The following shall constitute events of default (individually, an "Event of Default"): (i) default in the payment, when due or payable, (x) of any Obligation for the payment of principal; or (y) within 5 days after the due date therefor, of any other Obligation for the payment of money; or (ii) default in the performance or observance of or compliance with (x) any of the ~~following events~~ provisions of Sections 2 (~~each an "EVENT OF DEFAULT") shall occur with respect to any Borrower: (a) Such Borrower (i) shall default in~~ other than the payment of principal and interest), 5.1, 5.2, 5.3 (other than with respect to the first sentence thereof, which shall be covered by subsection (iii) below), 5.5 through 5.10, inclusive, 5.12 through 5.29, inclusive, of ~~any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~this Agreement, or (iiy) ~~shall default in~~ any term or condition of the Credit Note (other than the payment of ~~any other amount due hereunder after the same becomes due~~ principal and ~~payable~~interest); or (biii) ~~Such Borrower shall~~ default in the performance or observance of or compliance with any ~~term contained~~ other covenant or condition of this Agreement or any Other Obligation not listed in ~~Sections 9.01(a~~subsections (i) or ~~9.01(b~~(ii) above, and such default ~~shall have continued~~ continues for more than ~~three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~30 days; or (civ) ~~Such Borrower shall default in the performance of~~ any representation or ~~compliance with~~ warranty at any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed time made by ~~such~~ or on behalf of the Borrower in this ~~Agreement~~ Agreement, any other Loan Document, or in ~~any certificate~~connection with the transactions contemplated by the Loan Documents, ~~financial statement or other document delivered pursuant hereto~~ shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made or deemed to have been made; or (fv) ~~Except as otherwise provided in this Section 10.01, such~~ the occurrence of any of the following events: (a) the Borrower ~~shall default in~~ or any Subsidiary (1) fails to make any payment ~~due on~~ in respect of any Indebtedness ~~for borrowed money~~ or ~~the deferred purchase price~~ Contingent Obligation (other than in respect of ~~property, the~~ Swap Contacts) having an aggregate ~~outstanding~~ principal amount ~~of which is in excess of five percent~~ (5%including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of ~~such Borrower's Total Assets~~more than Two Million Five Hundred Thousand Dollars ($2,500,000) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such ~~default shall continue for more than~~ failure continues after the ~~period of grace~~applicable grace or notice period, if any, specified in the relevant document on the date of such failure or (2) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than Two Million Five Hundred Thousand Dollars ($2,500,000) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable ~~thereto and shall not have been waived pursuant thereto and shall~~ grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or permit the holder or holders of such Indebtedness ~~to declare~~ or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable ~~before~~ prior to its stated maturity, or such Contingent Obligation to become payable or cash collateral in ~~the performance of~~ respect thereof to be demanded; or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (iB) ~~of this Section 10.01 shall have occurred and be continuing~~ any Termination Event (as defined in such Swap Contract) as to which the Borrower or any Subsidiary is an Affected Party (as defined in such Swap Contract), and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result ~~of such claim having been asserted in respect of such Indebtedness; or~~ thereof is greater than Two Million Five Hundred Thousand Dollars (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower$2,500,000); or (hvi) Ifissuance of an injunction which might have a material adverse effect on the condition (financial or otherwise), ~~within sixty (60) days after~~ properties, business or results of operations of the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted~~Borrower, or attachment which in the aggregate exceeds $1,000,000 in value, against the Borrower, any ~~other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting~~ property of the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any ~~substantial part~~ endorser, guarantor or surety for any Obligation which is not dismissed or bonded, to the satisfaction of the ~~property of such Borrower such appointment shall not have been vacated~~Lender, within 10 days after its issuance; or (ivii) ~~A final judgment which~~calling of a meeting of creditors, ~~together~~ formation or appointment of a committee of creditors or liquidating agents or offering of a composition or extension to creditors by, for or with ~~other outstanding final judgments against such Borrower~~the consent or acquiescence of the Borrower or any endorser, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged guarantor or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of~~ surety for any ~~such stay, such judgment shall not have been discharged~~Obligation; or (jviii) ~~Such~~ Insolvency of the Borrower or any ~~member of the Controlled Group shall fail to pay when due an amount~~ endorser, guarantor or ~~amounts~~ surety for any Obligation (including without limitation any Subsidiary); or (ix) any money judgment or judgments aggregating in excess of $~~500,000 which it is obligated to pay to~~ 1,000,000 are entered against the ~~PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such~~ Borrower or any ~~member~~ endorser, guarantor or surety for any Obligation (except to the extent fully covered by insurance and the insurance carrier has not reserved the right to disallow such claim), and shall continue unsatisfied and in effect for a period of 10 days, PROVIDED THAT the ~~Controlled Group,~~ total cost of any ~~plan administrator or any combination~~ bond applied in order to procure a stay of ~~the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer~~ execution in any such ~~Plan or Plans or a proceeding~~ litigation shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of not exceed $~~500,000~~100,000; or (kx) ~~Such Borrower~~ any Loan Document (other than a Subsidiary Guaranty), or any covenant, agreement or obligation contained therein or evidenced thereby, shall cease to be ~~an investment management company~~ legal, valid, binding or enforceable in accordance with its terms, or shall be canceled, terminated, revoked or rescinded; or (xi) a Subsidiary fails in any material respect to perform or observe and term, covenant or agreement in its Subsidiary Guaranty; or a ~~Portfolio thereof~~Subsidiary Guaranty is for any reason partially (including with respect to future advances) ~~registered under the Investment Company Act~~or wholly revoked or invalidated, or ~~such Borrower's registration under the Investment Company Act~~otherwise ceases to be in full force and effect, or ~~that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and~~ a Subsidiary contests in any ~~such event~~manner the validity or enforceability of its Subsidiary Guaranty or denies that it has any further liability or obligation thereunder; (xii) any action at law, ~~and at~~ suit in equity or other legal proceeding to cancel, revoke or rescind any ~~time thereafter~~Loan Document shall be commenced by or on behalf of the Borrower or any other person bound thereby, if or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents, or any one or more of the obligations of the Borrower or any other person under any one or more of the Loan Documents, are illegal, invalid or unenforceable in accordance with the terms thereof; or (xiii) there occurs any Change of Control; or (xiv) any event occurs which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), properties, business or results of operations of the Borrower. 6.2 If an Event of Default shall ~~then~~ occur and be ~~continuing with respect to such defaulting Borrower~~continuing, the Lender may, at its option, (i) in declare any or all of the ~~case~~ Obligations of ~~any Event of Default specified in paragraphs (g) and (h) above,~~ the ~~Commitments as~~ Borrower to ~~such defaulting Borrower shall thereupon automatically~~ the Lender to be ~~terminated and the principal of and accrued interest on the Loans shall automatically become~~ immediately due and payable without ~~presentment, demand, protest or other~~ further notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payabledemand, whereupon the ~~principal of and accrued interest in respect of such Loans~~ same shall become ~~forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby ~~expressly~~ waived by ~~such~~ the Borrower, ~~and/or~~ (Bii) limit, suspend or terminate the ~~Commitments as~~ Borrower's right to ~~such defaulting Borrower~~borrow hereunder, ~~whereupon~~ and (iii) exercise any rights and remedies under the ~~Commitments~~ Loan Documents and at law or in equity; PROVIDED THAT in the event of ~~the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ any Event of Default specified in subsections (vii) or (viii) of Section 6.1 hereof, all Obligations shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the ~~percentages of~~ Lender or action by the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 1 contract

Samples: Loan Agreement (C P Clare Corp)

Events of Default; Acceleration. If any of the following events (~~each~~ an "~~EVENT OF DEFAULT~~Event of Default") ~~shall occur with respect to any Borrower~~has occurred and is continuing: (a) ~~Such Borrower (i)~~ if the Company shall ~~default in the payment of~~ fail to pay any principal of or interest on the Loans or any ~~Loan, interest accrued thereon~~ other amount payable hereunder or ~~fee due hereunder after~~ under the Letter of Credit Documents when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued date fixed for ~~more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~payment; (c) ~~Such Borrower~~ if the Company shall ~~default~~ fail to perform any term, covenant or agreement contained herein or in the ~~performance~~ Letter of ~~or compliance with any term contained herein~~ Credit Documents (other than those ~~expressly referred to~~ specified in ~~this Section 10.01,~~ subSection s (a) and (b) above) and the continuance of such ~~default~~ failure shall ~~not have been remedied within five (5) Banking Days~~ exist for 30 days after written notice ~~thereof shall have~~ of such failure has been given to ~~such Borrower~~ the Company by the ~~Operations~~ Agent~~; or~~; (d) ~~Such Borrower shall default in~~ if any representation or warranty of the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower Company in this Agreement or in the Letter of Credit Documents or in any ~~certificate, financial statement~~ document or ~~other document~~ instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement or the Letter of Credit Documents shall prove to have been false ~~or incorrect~~ in any material respect upon the date when ~~made~~made or deemed to have been made or repeated; (e) if the Company shall fail to make any payment due on any obligation for borrowed money (having a total amount outstanding in excess of $500,000), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such obligation and the effect of such failure could or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or a trustee for such holder or holders or of any obligations issued thereunder to accelerate the maturity thereof; (f) The Company shall be involved in financial difficulties as evidenced: (i) by its admission in writing of its inability to pay its debts generally as they become due; (ii) by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its board of directors or other governing body, the commencement of such a voluntary case; (iii) by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert or challenge in a timely manner the material allegation of any such petition; (iv) by the entry of an order for relief against it in any involuntary case commenced under Title 11 which remains undischarged or unstayed for more than sixty (60) days; (v) by its seeking relief as a debtor under any applicable law, other than Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or by its consenting to or acquiescing in such relief; (vi) by entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent or (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors which remains undischarged or unstayed for more than sixty (60) days; (vii) by the entry of an order by a court of competent jurisdiction assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property which remains undischarged or unstayed for more than sixty (60) days; or (fviii) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before by its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make making an assignment for the benefit of of, or entering into a composition with, its creditors, or ~~shall fail generally to pay its debts as such debts become due,~~ appointing or ~~shall apply for or consent~~ consenting to the appointment of ~~or taking possession by~~ a ~~trustee,~~ receiver or ~~liquidator (~~other custodian for all or ~~other similar official) of such Borrower or any~~ a substantial part of its property; (g) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty days, whether or not consecutive, any final judgment against the ~~property or assets of~~ Company which, with other outstanding final judgments, undischarged, against such ~~Borrower or shall commence a case or have an order for relief entered against it under~~ Person(s) exceeds $500,000 in aggregate amount with respect to the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orCompany; (h) Ifif UHS of Delaware, Inc., a subsidiary of UHS, shall cease to be the real estate investment trust advisor to the Company and a new advisor satisfactory to each of the Banks has not been appointed, or a group of managers satisfactory to each of the Banks has not been hired, within ~~sixty~~ ninety (6090) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orcessation; (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent~~ if any Person or group of Persons (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section ~~4219(c)(5~~13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of ~~ERISA, with respect to, one~~ thirty percent (30%) or more ~~Multiemployer Plans which could cause such Borrower or one or more members~~ of the ~~Controlled Group to incur a current payment obligation in excess~~ outstanding shares of ~~$500,000~~common stock of the Company; or ~~(k) Such Borrower~~ , during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to ~~be an investment management company~~ constitute a majority of the board of directors of the Company; (or j) if any guarantee by UHS of any lease by the Company to a ~~Portfolio thereof) registered under the Investment Company Act~~UHS Subsidiary is disavowed, terminated, or ~~such Borrower's registration under the Investment Company Act~~ceases to be in full force and effect, or ~~that~~ is waived or amended without the prior written consent of ~~any Borrower Agent~~ the Banks (other than the termination of a guarantee of such ~~Borrower, shall lapse~~ a lease in connection with the sale of a Health Care Facility permitted by Section 7.30); or ~~be suspended;~~ then, and in any such event, ~~and at any time thereafter, if any Event of Default~~ unless the same shall ~~then~~ be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~cured or waived, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentAgent shall, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority ~~Banks shall~~Banks, by ~~written~~ notice in writing to the Company, terminate this Agreement and upon such ~~defaulting Borrower (A) declare~~ termination the ~~principal of and accrued interest in respect of such defaulting Borrower's~~ Banks shall have no further obligation to make Loans to be the Company or issue Letters of Credit for the account of the Company, and shall declare all Obligations, including, without limitation the Notes, to be, and they shall thereupon forthwith ~~due~~ mature and ~~payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Company; provided, ~~and/or (B~~that in the event of any Event of Default described in Section 8(f) ~~terminate the Commitments as to such defaulting Borrower~~or Section 8(g) hereof, ~~whereupon the Commitments~~ all Obligations shall become immediately due and payable automatically, and all obligations of the Banks to make ~~Committed~~ Loans or issue Letters of Credit ~~Loans hereunder to such defaulting Borrower~~ shall ~~forthwith terminate~~ automatically terminate, without any ~~other~~ requirement of notice from the Banks. To the extent that the Obligations accelerated hereunder relate to Letters of Credit, the amount becoming due and payable shall be the aggregate outstanding amount of the Letters of Credit, whether or not any drawings or claims have been presented thereunder. No termination of the credit hereunder shall relieve the Company of any ~~kind and the percentages~~ Obligations or any of its existing obligations to any of the ~~Commitment Fee~~ Banks arising under other agreements or instruments. No remedy herein conferred upon the Banks is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit Agreement (Universal Health Realty Income Trust)

Events of Default; Acceleration. If any of the following events occurs (~~each an "EVENT OF DEFAULT")~~ each, a “Default”), all Loans shall ~~occur with respect to any Borrower~~become due immediately, at the Lender’s option: (a) ~~Such~~ The Borrower fails to pay when due (i) ~~shall default in~~ the ~~payment~~ principal amount or any interest of ~~principal of any Loan, interest accrued thereon or fee due hereunder after~~ the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise,~~ Loans or (ii) ~~shall default in~~ any of the ~~payment of~~ other Liabilities or any other debt to any Person, or any amount ~~due hereunder after~~ payable with respect to any of the ~~same becomes due~~ Liabilities, or under the Note, any other Related Document, or any agreement or instrument evidencing other debt to any Person and ~~payable; or~~such failure continues for five (5) business days. (b) ~~Such Borrower shall default in~~ The Borrower: (i) fails to observe or perform or otherwise violates any term, covenant, condition or agreement of Section 5.2, 5.7, or 6.2 of this Agreement; (ii) makes any materially incorrect or misleading representation, warranty, or certificate to the ~~performance~~ Lender; or (iii) defaults under the terms of any agreement or ~~compliance with~~ instrument relating to any ~~term contained in Sections 9.01(a) or 9.01(b~~debt for borrowed money (other than the debt evidenced by the Related Documents) and the effect of such default ~~shall have continued for more than three (3) Banking Days, or such Borrower shall default in~~ will allow the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~creditor to declare the debt due before its stated maturity. (c) ~~Such~~ The Borrower ~~shall default in the performance~~ fails to observe or perform or otherwise violates any term, covenant, condition or agreement of ~~or compliance with~~ any ~~term contained herein~~ provision of this Agreement (other than ~~those expressly referred to~~ as set forth in any other subsection of this Section ~~10.01,~~ 8.1) or any other Related Document and any such ~~default shall not have been remedied within five~~ failure continues for thirty (530) ~~Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or~~days or more; (d) ~~Such~~ The Borrower ~~shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent~~ or any ~~Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period~~ of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries: (i) ~~of this Section 10.01 shall have occurred and be continuing~~ becomes insolvent or unable to pay its debts as ~~a result of such claim having been asserted in respect of such Indebtedness~~they become due; or (gii) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ makes an assignment for the benefit of creditors~~, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent~~ ; (iii) consents to the appointment of ~~or taking possession by~~ a ~~trustee~~custodian, receiver or ~~liquidator~~ trustee for itself or for a substantial part of its Property; (iv) commences any proceeding under any bankruptcy, reorganization, liquidation, insolvency or ~~other~~ similar ~~official~~laws; or (v) conceals or removes any of ~~such~~ its Property, with intent to hinder, delay or defraud any of its creditors. (e) A custodian, receiver, or trustee is appointed for the Borrower or any of its Subsidiaries or for a substantial part of their respective Property. (f) The Borrower or any of its Subsidiaries, without the Lender’s written consent: (i) liquidates or is dissolved; (ii) merges or consolidates with any other Person; (iii) leases, sells or otherwise conveys a substantial part of its assets or business outside the ordinary course of its business; (iv) leases, purchases, or otherwise acquires a substantial part of the ~~property or~~ assets of ~~such~~ any other Person, except in the ordinary course of its business; or (v) agrees to do any of the foregoing; provided, however, that (i) the Merger shall be permitted and (ii) any Subsidiary of the Borrower may merge or ~~shall commence a case or have an order for relief entered against it under~~ consolidate with any other Subsidiary of the ~~federal bankruptcy laws, as now or hereafter constituted~~Borrower, or with the Borrower, so long as the Borrower is the survivor. (g) Proceedings are commenced under any ~~other applicable federal or state~~ bankruptcy, ~~insolvency or other similar law~~reorganization, liquidation, or ~~if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after~~ similar laws against the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any ~~substantial part~~ of ~~the property of~~ its Subsidiaries and such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within proceedings remain undismissed for thirty (30) days after ~~entry thereof, such judgment shall not have been discharged~~ commencement; or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after~~ the ~~expiration of any such stay, such judgment shall not have been discharged; or (j) Such~~ Borrower or any ~~member~~ of ~~the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay~~ its Subsidiaries consents to the ~~PBGC or to a Plan under Title IV~~ commencement of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such~~ those proceedings. (h) Any final, non-appealable judgment is entered against the Borrower or any ~~member~~ of its Subsidiaries or any of the ~~Controlled Group~~Property of such Persons, ~~any plan administrator~~ or any ~~combination~~ attachment, seizure, sequestration, levy, or garnishment is issued against any Property of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any ~~member~~ of its Subsidiaries and when added to any other judgment, attachment, seizure, sequestration, levy, or garnishment, the amount of the ~~Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which~~ same exceeds $1,000,000 in the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; oraggregate. (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) The market price of the common Equity Interests owned by the Borrower in ~~the case of any Event of Default specified in paragraphs (g) and (h) above~~DSW, ~~the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest~~ Inc. traded on the ~~Loans~~ New York Stock Exchange shall ~~automatically become due and payable without presentment, demand, protest~~ close at a price less than $20.00 per share for a period of five (5) or ~~other notice~~ more consecutive business days or ~~formality~~ for any five (5) business days within any period of ~~any kind, all of which are hereby expressly waived, and~~ ten (ii10) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationconsecutive business days.

Appears in 1 contract

Samples: Loan Agreement (Retail Ventures Inc)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower:~~and be continuing (a) ~~Such Borrower (i)~~ the Obligors shall default in the payment of any principal of or Make Whole Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) the Obligors shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or (bc) ~~Such Borrower~~ the Obligors shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~Section 7(h) or ~~9.01(b~~any of Sections 10.1 through 10.8, inclusive and Section 10.10(b); or (d) ~~and such default shall have continued for more than three (3) Banking Days~~either Obligor, the general partner of Star Gas, the Public Partnership or ~~such Borrower~~ any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after such default shall first have become known to any officer of such Person or written notice thereof shall have been ~~given to such Borrower~~ received by either Obligor or the ~~Operations Agent~~general partner of Star Gas; or (de) ~~Such Borrower~~ any representation or warranty made in writing by or on behalf of either Obligor or any of their Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or (f) either Obligor or any Restricted Subsidiary (as principal or guarantor or other surety) shall default in the ~~performance of~~payment of any amount of principal of or premium or interest on the Bank Credit Facilities, or ~~compliance with, any material term contained~~ other Indebtedness which is outstanding in ~~any~~ a principal amount of at least $2,000,000 in the aggregate (other ~~written agreement with~~ than the ~~Operations Agent~~ Notes); or any event shall occur or condition shall exist in respect of the Bank ~~pertaining~~ Credit Facilities, or other Indebtedness which is outstanding in a principal amount of at least $2,000,000 or under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating to ~~this Agreement~~ the Bank Credit Facilities or such ~~Borrower's Loans~~other Indebtedness the effect of which is to cause (or to permit one or more Persons to cause) such Bank Credit Facilities or other Indebtedness to become due before its stated maturity or before its regularly scheduled dates of payment or to permit the holders thereof to cause either Obligor or any Restricted Subsidiary to repurchase or repay such Bank Credit Facilities or other Indebtedness, and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (eg) ~~Any representation~~filing by or on the behalf of either Obligor or the general partner of Star Gas of a voluntary petition or an answer seeking reorganization, ~~warranty certification~~ arrangement, readjustment of its debts or ~~statement made~~ for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or ~~deemed made~~ liquidation or similar act or law, state or Federal, now or hereafter existing ("Bankruptcy Law"), or any action by ~~such Borrower in this Agreement~~ either Obligor or ~~in any certificate~~the general partner of Star Gas for, ~~financial statement~~ or consent or acquiescence to, the appointment of receiver, trustee or other ~~document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01~~custodian of either Obligor, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ or the ~~deferred purchase price~~ general partner of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityStar Gas, or in of all or a substantial part of its property; or the ~~performance~~ making by either Obligor or the general partner of ~~or compliance with any term~~ Star Gas of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or ~~shall fail generally~~ the admission by either Obligor or the general partner of Star Gas in writing of its inability to pay its debts as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Iffiling of any involuntary petition against either Obligor or the general partner of Star Gas in bankruptcy or seeking reorganization, ~~within sixty (60) days after~~ arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ premises shall have been issued or ~~hereafter constituted,~~ entered therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law, such case~~ powers over either Obligor or the general partner of Star Gas or over all or a part of its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of either Obligor or the ~~stay~~ general partner of ~~any such order~~ Star Gas or ~~proceeding shall thereafter be set aside,~~ of all or ~~if within sixty (60) days after~~ a substantial part of its property; or the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of either Obligor or the general partner of Star Gas; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or (j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged, or (k) a final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in the aggregate equal~~ (which is or are non-appealable or which has or have not been stayed pending appeal or as to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~which all rights to appeal have expired or been exhausted) shall be rendered against either Obligor or any Restricted Subsidiary for the payment of money in excess of $1,000,000 in the aggregate and any one of such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ judgments shall not ~~have been~~ be discharged or execution ~~thereof~~ thereon stayed pending ~~appeal, or if,~~ appeal within ~~thirty (30)~~ 45 days after the ~~expiration~~ date due, or, in the event of ~~any~~ such a stay, such judgment shall not ~~have been discharged~~be discharged within 30 days after such stay expires or any action shall be legally taken by a creditor to levy upon the assets or properties of either Obligor or any Restricted Subsidiary to enforce any such judgment; or (jl) ~~Such Borrower~~ any of the Operative Agreements shall at any time, for any reason, cease to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non- appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Operative Agreements shall be contested by or on behalf of either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any ~~member~~ Restricted Subsidiary, or either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any Restricted Subsidiary shall renounce any of the ~~Controlled Group shall fail to pay when due an amount~~ Operative Agreements, or ~~amounts aggregating in excess of $500,000 which~~ deny that it is ~~obligated to pay to~~ bound by the ~~PBGC or to a Plan under Title IV~~ terms of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or~~ 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Operative Agreements; or (km) ~~Such Borrower~~ any order, judgement or decree is entered in any proceedings against an Obligor decreeing a split-up of such Obligor which requires the divestiture of assets of such Obligor or the divestiture of the stock of a Restricted Subsidiary which would not be permitted if such divestiture were considered a partial disposition of assets pursuant to Section 10.7(c) and such order, judgment or decree shall not be dismissed or execution thereon stayed pending appeal within 30 days after entry thereof, or, in the event of such a stay, such order, judgment or decree shall not be discharged within 30 days after such stay expires; or (n) there shall occur at any time a change in Legal Requirements specifically applicable to either Obligor or to the Business or to the business of the wholesale and retail sale, distribution and storage of propane gas and related petroleum derivative products and the related retail sale of supplies and equipment, including home appliances which would have a Material Adverse Effect (other than on the prospects (financial or otherwise) of the Obligors or the Business) and 60 days after the earlier of (i) such occurrence shall first have become known to any officer of either Obligor or the general partner of Star Gas or (ii) written notice thereof shall have been received by either Obligor or the general partner of Star Gas from any holder of any Note, such Material Adverse Effect shall be continuing; or (o) any Lien purported to be created by any Security Document shall cease to ~~be an investment management company (or a Portfolio thereof) registered under the Investment Company Act~~be, or ~~such Borrower's registration under~~ shall for any reason be asserted by either Obligor, the ~~Investment Company Act~~general partner of Star Gas or any Restricted Subsidiary not to be, a valid, perfected, first priority Lien on the securities, properties or assets covered thereby, other than as a result of an act or omission of the Trustee or any holder of a Note; or (p) any governmental authority revokes or fails to renew any material license, permit or franchise of either Obligor or any Restricted Subsidiary, or ~~that~~ either Obligor or any Restricted Subsidiary for any reason loses any material license, permit or franchise, or either Obligor or any Restricted Subsidiary suffers the imposition of any ~~Borrower Agent~~ restraining order, escrow, suspension or impound of ~~such Borrower~~funds in connection with any proceeding, ~~shall lapse~~ (judicial or ~~be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing~~ administrative) with respect to ~~such defaulting Borrower~~any material license, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest permit or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.franchise;

Appears in 1 contract

Samples: Note Agreement (Star Gas Partners Lp)

Events of Default; Acceleration. ~~If any~~ Each of the following ~~events (each~~ shall constitute an "~~EVENT OF DEFAULT") shall occur with respect to any Borrower~~Event of Default" under this Agreement: (a) ~~Such Borrower~~ if Borrowers fail to pay (ix) ~~shall default in~~ the ~~payment of~~ principal of or premium, if any, on any ~~Loan~~Note, ~~interest accrued thereon or fee due hereunder after~~ when the same becomes due and payable, whether at the maturity thereof, on a date fixed for payment or ~~by acceleration~~ for a prepayment, or otherwise, (y) the interest on any Note or (iiz) ~~shall default in the payment of any~~ a fee or other amount ~~due hereunder after~~ payable hereunder, when and as the same becomes due and payable, and such failure shall have continued for five (5) days; or (b) ~~Such Borrower~~ if Borrowers shall default in the performance or compliance with any term contained in Sections 6.3, 6.4, 6.5, 6.6 or 6.11 hereof, and such default shall not have been remedied within ten (10) days of the occurrence of such default; or (c) if Borrowers default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~Articles VI (other than those listed in clauses (a) or ~~9.01(b~~(b) ~~and such default shall have continued for more than three~~ hereof), VII or VIII; or (3d) ~~Banking Days, or such Borrower~~ if Borrowers shall default in the performance of or compliance with any ~~term~~ agreement contained herein other than those referred to above in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~this Article IX and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to Borrowers by the Agent; or (ce) ~~Such~~ if a Borrower or a Subsidiary shall default in the performance of or compliance with any ~~term~~ agreement contained ~~herein~~ in the other ~~than those expressly referred to~~ Revolving Loan Documents or in ~~this Section 10.01~~any of the Subordinated Loan Documents, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default or in the performance ~~of,~~ of or compliance ~~with,~~ with any material term contained in any other written agreement ~~with~~ in respect of Indebtedness between a Borrower or a Subsidiary or the ~~Operations~~ Banks (or the Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans~~on their behalf), and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (ef) ~~Any representation,~~ if any representation or warranty ~~certification or statement made or deemed~~ made by ~~such Borrower~~ Borrowers herein, in ~~this Agreement~~ the other Revolving Loan Documents or ~~in any certificate, financial statement or other document delivered~~ pursuant hereto or thereto shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made; or (fg) ~~Except as otherwise provided in this Section 10.01, such~~ if a Borrower or a Subsidiary shall default in any payment due on any Indebtedness ~~for~~ in respect of borrowed money with an unpaid principal amount in excess of $250,000, any Interest Rate Protection Agreement, any Capitalized Lease or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant ~~thereto and~~ thereto; or (h) if a Borrower or a Subsidiary shall ~~permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such~~ default in payment or performance of any material obligation (except Indebtedness, which is covered in ~~good faith by appropriate proceedings promptly initiated and diligently conducted~~ Section 9.1(g) above), whether now or hereafter incurred, and such ~~Borrower~~ default shall ~~have set aside on its books such reserves~~continue for more than the period of grace, if any, ~~with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b)~~ specified in the agreement or ~~(i) of this Section 10.01 shall have occurred and be continuing as a result~~ other documents setting forth the terms of such ~~claim having~~ obligation, or shall not have been ~~asserted~~ waived pursuant thereto, and in ~~respect~~ the reasonable judgment of ~~such Indebtedness~~the Agent, either individually or together with any other defaults hereunder, jeopardizes or could reasonably be expected to jeopardize repayment of any Note, or consummation of the transactions contemplated in the Revolving Loan Documents or the Subordinated Loan Documents; or (gi) ~~Such~~ if any action, proceeding, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or which is related to or arises out of the Revolving Loan Documents, the Subordinated Loan Documents, or the transactions contemplated hereby or thereby; provided, however, that the institution or threat of such an action or proceeding shall not constitute an Event of Default hereunder if (i) independent counsel retained by Borrowers shall have delivered to the Banks an opinion stating that there is no material likelihood that such action or proceeding will be adversely determined against a Borrower or a Subsidiary or (ii) the outcome of the proceeding, if adversely determined, will not have a material and adverse effect on the business, condition, financial or otherwise, or operations of a Borrower or a Subsidiary or the transactions contemplated by the Revolving Loan Documents or the Subordinated Loan Documents; or (j) if a Borrower or a Subsidiary shall discontinue its ~~business (other than in connection with a permitted merger or consolidation of such Borrower)~~ primary business, or shall make an a general assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of ~~such~~ a Borrower or a Subsidiary or any substantial part of the property of a Borrower or ~~assets~~ a Subsidiary, or if there shall occur any commencement by any Borrower or Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Borrower or Subsidiary to the entry of a decree or order for relief in respect of such Borrower or ~~shall commence a~~ Subsidiary in an involuntary case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other~~ applicable federal or state bankruptcy, insolvency reorganization or other similar law or the commencement of any bankruptcy or insolvency case or proceeding against any Borrower or Subsidiary, or the filing by any Borrower or Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or if the consent by any ~~action shall be taken~~ Borrower or Subsidiary to ~~dissolve~~ the filing of such petition or ~~liquidate~~ to the appointment of or taking possession by a custodian receiver, liquidator,assignee, trustee, sequestrator or similar official of such Borrower ~~(other than in connection with a permitted merger~~ or ~~consolidation~~ Subsidiary or of any substantial part of such ~~Borrower)~~Borrower or Subsidiary, or the making of an assignment for the benefit of creditors, or the admission by any Borrower or Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by any Borrower or Subsidiary in furtherance of any such action; or (hk) Ifif there shall occur any refusal or failure by the U.S. Government, ~~within sixty~~ any state, or any agency or instrumentality thereof to renew or extend any material Franchise or Consent held by a Borrower or a Subsidiary (60provided, however, that any refusal or failure to renew or extend a Consent or Franchise required for performance by a Borrower or a Subsidiary of U.S. Government Contracts shall be considered material) ~~days after~~ or any denial, forfeiture or revocations by any governmental authority or any authorization required by law or the ~~commencement~~ expiration without renewal of any such authorization, and such events, either individually or in the aggregate, jeopardize, or could reasonably be expected to jeopardize, repayment of the Notes or the continuation of the business of a Borrower or a Subsidiary as it has been conducted in the past; or (i) if there shall be commenced against ~~such~~ a Borrower of or a Subsidiary a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, and within sixty (60) days of such commencement such case ~~shall have been consented to or~~ shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of ~~such~~ a Borrower or a Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if (ii) if, within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such~~ a Borrower or any substantial part of the property of ~~such~~ a Borrower or a Subsidiary such appointment shall not have been vacated; or (im) A a final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower~~a Borrower or a Subsidiary, exceeds an ~~amount in the~~ aggregate ~~equal to five percent (5%)~~ of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $200,000 shall be rendered against ~~such~~ a Borrower or a Subsidiary and if, within ~~thirty~~ sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty~~ sixty (3060) days after the expiration of any such stay, such judgment shall not have been discharged or a warrant of attachment or execution or similar process shall be issued or levied against any property of a Borrower or a Subsidiary and if, within three (3) Banking Days after the issue or levy thereof, such warrant or process shall not have been discharged or stayed pending appeal (whether by action of a court, by agreement or otherwise), or if, within three (3) days after the expiration of any such stay, such warrant or process shall not have been discharged; or (jn) ~~Such~~ if a Borrower or a Subsidiary loses, fails to keep in force, suffers the termination or revocation of or terminates, forfeits or suffers an amendment to any ~~member of the Controlled Group shall fail to pay when due an amount~~ Franchise or ~~amounts aggregating in excess of $500,000~~ Consent at any time held by it which ~~it is obligated to pay to the PBGC or to~~ would have a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000material adverse effect on its financial condition; or (ko) ~~Such~~ if a Change of Control shall occur; or (p) if there shall occur (i) any suspension, termination (other than a termination for convenience of the U.S. Government) or revocation of any kind (exclusive of expiration and non-renewal) of any Government Contract or any commercial contract of a Borrower ~~shall cease to be an investment management company~~ or any Subsidiary with a remaining contract value of $10,000,000 or more; (~~or a Portfolio thereof~~ii) ~~registered under the Investment Company Act~~any investigation of, or ~~such Borrower's registration under the Investment Company Act~~sanctions (including, without limitation, fines, penalties or forfeitures) against, a Borrower or any Subsidiary which has, or is likely to have, a materially adverse effect on the business or operations of Borrowers and the Subsidiaries taken as a whole, including, without limitation, any final decision subject to any applicable disputes clause or unilateral Government Contract modification assessing a material penalty or material damages; any assertion of a material claim based on asserted violations of Cost Accounting Standards ("CAS") or defective pricing; any notice of a proposed material disallowance of indirect cost claims in excess of reserves therefor; any subpoena or notice signifying the initiation of an investigation by Government investigative or enforcement agency other than normal audits in the ordinary course of business; any notice from a Government that any material cost or claim contained in any invoice or request for progress payment has been disallowed; any other notice from the cognizant Government contracting officer alleging the failure by a Borrower or any Subsidiary to provide goods or services fully in conformity to, or otherwise to comply in any material way with, any applicable Government Contract provision, specification or regulation; or (iii) the initiation of a debarment or suspension proceeding by the Government against a Borrower or any Subsidiary; or (q) if at any time any of the following individuals, or substitutions for such individuals satisfactory to the Agent in its sole and absolute discretion, arenot in the respective positions listed below: Xxxx X. Xxxx President and Chief Executive Officer Xxxxxxx Xxxxxx Vice President, Chief Financial Officer and Treasurer; or (r) If the Subordinated Debt or preferred stock of any Borrower ~~Agent~~ or any Subsidiary is the subject of any restructuring, refinancing, modification or substitution without the prior written consentof the Agent; or (s) If any action, suit, litigation or other proceeding at law or in equity is commenced or threatened (i) seeking to enjoin or to unwind the transactions contemplated by that certain Settlement Agreement by and among, inter xxxx, Xxxx X.X. Xxxxxx and C3 Investors, L.P. dated as of September 27, 1993 or any document or agreement referenced therein, (ii) seeking to dispute the legality, permissibility oradvisability of the settlement of the cases styled Xxxx Xxxxx, et al. v. C3, Inc., et al., Case No. 931119026, CE163830 in the Circuit Court for Baltimore City and Xxxxx x. Xxxxxx, Civil Case No. 93125044 in the CircuitCourt for Baltimore City (the "Litigation"), or (iii) involving any of the issues which were raised by or in connection with the Litigation; or (t) If any of the provisions of the Standstill Agreement among Xxxx X.X. Xxxxxx, Xxxx Xxxxx and Xxxxxxx Xxxxxxxx, dated as of September 27, 1993, are breached or such ~~Borrower, shall lapse~~ agreement is no longer in full force and effect; or (u) If all or ~~be suspended~~any part of the Litigation is reinstituted by any party with respect to any matter arising out of the Litigation; then~~, and in any such event~~, and at any time thereafter, if any such Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuing, either or both of the following actions may be taken~~: the Operations~~ . The Agent ~~may, and upon the written or telephonic~~ shall (~~confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A~~i) declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of ~~such Loans~~ the Notes shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~Borrowers, and/or (Bii) ~~terminate~~ declare the ~~Commitments as to such defaulting Borrower~~Commitment terminated, whereupon the ~~Commitments~~ Commitment of the Banks to make ~~Committed Credit~~ Loans hereunder ~~to such defaulting Borrower~~ shall forthwith terminate without any other notice of any ~~kind~~ kind; provided, however, that, notwithstanding the above, if there shall occur an Event of Default under clauses (j), (l), (o), (s), (t), or (u) above, then any and ~~the percentages~~ all of the ~~Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ Obligations shall be ~~reallocated among~~ immediately due and payable without presentment, demand, protest or other notice or action of any kind by the ~~remaining Borrowers PRO RATA on the basis~~ Agent, all of ~~the percentages set forth opposite such remaining~~ which are hereby expressly waived by Borrowers~~' names on SCHEDULE 1, as in effect at the time of such termination~~.

Appears in 1 contract

Samples: Credit Agreement (Telos Corp)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ the Company shall default in the payment of any principal of or Make Whole Amount or Premium Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) the Company shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or (bc) ~~Such Borrower~~ the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in Section 7(f), any of Sections ~~9.01(a) or 9.01(b) and such default shall have continued for more~~ 10.1 through 10.8 (other than ~~three (3) Banking Days~~Section 10.8(c)), inclusive, or ~~such Borrower~~ the Dedicated Funds are not used to repay Indebtedness as specified in the pro forma calculations set forth in the definition of Consolidated Pro Forma Debt Service or the definition of Maximum Consolidated Pro Forma Debt Service, as the case may be; or (d) the Company, either General Partner, the Public Partnership or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking~~ 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent~~Company from the Trustee or from any Note holder; or (de) ~~Such Borrower~~ any material representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or (i) the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default (after receiving notice, if any, and/or the expiration of any applicable grace period) in the ~~performance of,~~ payment of any amount of principal of or ~~compliance with, any material term contained in any other written agreement with~~ premium or interest on the ~~Operations Agent~~ Parity Debt or any ~~Bank pertaining~~ event shall occur or condition shall exist in respect of the Parity Debt the effect of which is to ~~this Agreement~~ cause such Parity Debt to become due before its stated maturity or ~~such Borrower's Loans,~~ before its regularly scheduled dates of payment and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~; or~~; (eii) ~~Any representation, warranty certification~~ the Company or ~~statement made~~ any Restricted Subsidiary (as principal or ~~deemed made by such Borrower in this Agreement or in any certificate, financial statement~~ guarantor or other ~~document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f~~surety) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ shall default ~~in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent~~ (~~5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace~~after receiving notice, if any, and/or the expiration of any applicable ~~thereto and~~ grace period) in the payment of any amount of principal of or premium or interest on any Indebtedness in an amount at least equal to $10,000,000; or any event shall ~~not have been waived pursuant thereto and~~ occur or condition shall ~~permit the holder~~ exist in respect of such other Indebtedness ~~to declare such Indebtedness due and payable before its stated maturity,~~ which is outstanding in a principal amount of at least $10,000,000 or ~~in the performance of or compliance with any term of~~ under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating ~~thereto~~to such other Indebtedness, ~~and any~~ the effect of which is to cause such ~~default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such~~ other Indebtedness to ~~declare such Indebtedness~~ become due ~~and payable~~ before its stated ~~maturity, unless such Borrower shall be contesting such payment~~ maturity or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on~~ before its ~~books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event~~ regularly scheduled dates of ~~Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~payment; or (g) ~~Such Borrower shall discontinue~~ filing by or on the behalf of the Company or the Managing General Partner of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its ~~business~~ debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("Bankruptcy Law"), or any action by the Company or the Managing General Partner, or consent or acquiescence to, the appointment of a receiver, trustee or other ~~than in connection with~~ custodian of the Company or the Managing General Partner, or of all or a ~~permitted merger~~ substantial part of its property; or ~~consolidation~~ the making by the Company or the Managing General Partner of ~~such Borrower) or shall make an~~ any assignment for the benefit of creditors, ; or ~~shall fail generally~~ the admission by the Company or the Managing General Partner of the Company in writing of its inability to pay its debts as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Iffiling of any involuntary petition against the Company or the Managing General Partner in bankruptcy or seeking reorganization, ~~within sixty (60) days after~~ arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ premises shall have been issued or ~~hereafter constituted,~~ entered therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law, such case~~ powers over the Company or the Managing General Partner or over all or a part of its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of the ~~stay~~ Company or the Managing General Partner or of ~~any such order~~ all or ~~proceeding shall thereafter be set aside,~~ a substantial part of its property; or ~~if within sixty (60) days after~~ the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of the Company or the Managing General Partner; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or (j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (k) a final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in the aggregate equal~~ (which is or are non-appealable or which has or have not been stayed pending appeal or as to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~which all rights to appeal have expired or been exhausted) shall be rendered against the Company or any Restricted Subsidiary for the payment of money in excess of $10,000,000 in the aggregate (net of any insurance coverage) and any one of such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ judgments shall not ~~have been~~ be discharged or execution ~~thereof~~ thereon stayed pending ~~appeal, or if,~~ appeal within ~~thirty (30)~~ 60 days after the ~~expiration~~ date due, or, in the event of ~~any~~ such a stay, such judgment shall not ~~have been discharged~~be discharged within 60 days after such stay expires or any action shall be legally taken by a judgment creditor to levy upon the assets or properties of the Company or any Restricted Subsidiary to enforce any such judgment; or (jl) ~~Such Borrower~~ any of the Security Documents shall at any time, for any reason, cease in any material respect to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Security Documents shall be contested by or on behalf of the Company, either General Partner, the Public Partnership, or any ~~member~~ Restricted Subsidiary, or the Company, either General Partner, the Public Partnership, or any Restricted Subsidiary shall renounce any of the ~~Controlled Group shall fail to pay when due an amount~~ Security Documents or ~~amounts aggregating in excess of $500,000 which~~ deny that it is ~~obligated to pay to~~ bound by the ~~PBGC or to a Plan under Title IV~~ terms of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or~~ 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Security Documents; or (km) ~~Such Borrower~~ any order, judgment or decree is entered in any proceedings against the Company decreeing a split-up of the Company, and such order, judgment or decree shall ~~cease to~~ not be ~~an investment management company (~~dismissed or ~~a Portfolio~~ execution thereon stayed pending appeal or review within 60 days after entry thereof~~) registered under the Investment Company Act~~, or ~~such Borrower's registration under~~ in the ~~Investment Company Act, or that of any Borrower Agent~~ event of such ~~Borrower~~a stay, such order, judgment or decree shall ~~lapse or~~ not be ~~suspended; then, and in any~~ dismissed within 60 days after such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.stay expires;

Appears in 1 contract

Samples: Note Agreement (Cornerstone Propane Partners Lp)

Events of Default; Acceleration. ~~If any~~ Any one or more of the following events (~~each an "EVENT OF DEFAULT"~~and whether such occurrence shall be voluntary or involuntary or be effected by any Legal Requirement) shall ~~occur with respect to any Borrower~~constitute an “Event of Default” hereunder: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any ~~other amount due hereunder~~ interest upon the Note within five (5) days after ~~the same~~ such interest becomes due and payable; or (b) ~~Such Borrower shall~~ default in the ~~performance~~ payment of principal of (or ~~compliance with any term contained in Sections 9.01(a~~prepayment premium, if any, on) the Note when and as the same shall become due and payable, whether at maturity or ~~9.01(b) and such default shall have continued~~ at a date fixed for ~~more than three (3) Banking Days~~principal payment or prepayment, or ~~such Borrower shall default in the performance of~~ by acceleration or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~otherwise; or (c) ~~Such Borrower shall~~ default in the ~~performance~~ payment of any other obligations due under the Loan Documents or ~~compliance with~~ the Indemnity Agreement or under any ~~term contained herein~~ document evidencing or securing any other ~~than those expressly referred~~ loan made by Lender to ~~in this Section 10.01~~Borrower or any Affiliate of Borrower within ten (10) days after the same becomes due, ~~and~~ or the acceleration of debt under any of the foregoing regardless of whether such acceleration constitutes a default ~~shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~thereunder; or (d) ~~Such Borrower shall~~ default in the performance ofor observance by Borrower or any Guarantor of (i) any covenant, agreement or condition contained in Section 7 hereof, or ~~compliance with, any material term contained in~~ (ii) any other ~~written~~ covenant, agreement ~~with the Operations Agent~~ or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, condition contained herein or in the ~~performance of~~ Note, or ~~compliance with~~ any ~~term of any evidence of such Indebtedness~~ “Default” or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no “Event of Default” under any other Loan Document or the Indemnity Agreement (other than Events of Default ~~pursuant to paragraphs (b) or (i)~~ specified in another subsection of this Section ~~10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g~~8.1) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall which is not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, remedied within thirty (30) days after the ~~expiration~~ earlier of (x) Borrower or any Guarantor, as applicable, becoming aware of any such ~~stay,~~ breach and (y) Lender notifying Borrower of any such ~~judgment~~ breach; or (e) Borrower shall not pay when due, whether by acceleration or otherwise, after giving effect to any applicable notice or grace period specified therein, any evidence of Material Indebtedness of Borrower (other than the Note), or any condition or default shall exist under any such evidence of Material Indebtedness or under any agreement under which the same may have been ~~discharged~~issued permitting acceleration of such evidence of Indebtedness, which could reasonably be expected to have a Material Adverse Effect; or (f) Borrower or any Guarantor shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against Borrower or any Guarantor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or Borrower or any Guarantor shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or (g) a court of competent jurisdiction shall enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against Borrower or any Guarantor under Title 11 of the United States Code; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging Borrower or any Guarantor bankrupt or insolvent, or ordering relief against Borrower or any Guarantor, or approving as properly filed a petition seeking relief against Borrower or any Guarantor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor or of any substantial part of its property, or ordering the reorganization, winding‑up or liquidation of its affairs; or any involuntary petition against Borrower seeking any of the relief specified in this clause which shall not be dismissed within sixty (60) days of its filing; or (h) Borrower or any Guarantor shall make a general assignment for the benefit of its creditors; or Borrower or any Guarantor shall consent to the appointment of, or taking possession of all or any substantial part of its property by, a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor; or Borrower or any Guarantor shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or Borrower or any Guarantor or its respective directors or majority equity interest holders shall take any action to dissolve or liquidate Borrower; or (i) the rendering against Borrower of a final non‑appealable judgment, decree or order for the payment of money in excess of Fifty Million and 00/100 Dollars ($50,000,000.00) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of sixty (60) consecutive days without a stay of execution; or (j) ~~Such~~ Borrower shall, with respect to any employee benefit plan sponsored or maintained by Borrower, (1) engage in any ~~member~~ non‑exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the ~~Controlled Group shall fail~~ Internal Revenue Code of 1986, as amended, which would reasonably be expected to ~~pay when due~~ have a Material Adverse Effect, (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount ~~or amounts aggregating~~ in excess of Fifty Million and 00/100 Dollars ($~~500,000 which it is obligated to pay to the PBGC~~ 50,000,000.00), whether or ~~to a Plan under Title IV of ERISA;~~ not waived, or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to (3) terminate or ~~to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary~~ permit the termination of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of an “employee pension benefit plan,” as defined in Section ~~4219(c)(5~~3(2) of ERISA, ~~with respect to, one or more Multiemployer Plans~~ in a manner which ~~could cause such~~ would reasonably be expected to result in the imposition of a Lien on any property of Borrower ~~or one or more members~~ pursuant to Section 4068 of ~~the Controlled Group to incur a current payment obligation~~ ERISA securing an amount in excess of Fifty Million and 00/100 Dollars ($~~500,000~~50,000,000.00); or (k) ~~Such~~ any representation or warranty made by Borrower or any Guarantor herein or in any other Loan Document or the Indemnity Agreement or in any certificate or instrument furnished in connection therewith shall prove to have been materially false or misleading as of the date made; or (l) a material portion of any Facility is rezoned, either voluntarily or involuntarily in a way that has a Material Adverse Effect without Lender’s prior written consent; or (m) [reserved]; or (n) the dissolution of Borrower, whether by operation of law or otherwise; or (o) Borrower shall suffer or permit any Facility, or any part thereof, to be used in such manner as might (1) impair Borrower’s title to any Facility, or any part thereof; or (2) create rights of adverse use or possession; or (3) constitute an implied dedication of any Facility, or any part thereof, except, in each case, to the extent any of the foregoing would constitute a Permitted Encumbrance; or (1) the Guaranty or the Indemnity Agreement for any reason shall cease to be ~~an investment management company (~~in full force and effect other than in accordance with its terms or ~~a Portfolio thereof) registered~~ any Guarantor shall deny its liability under the ~~Investment Company Act~~Guaranty or the Indemnity Agreement, or ~~such Borrower's registration under~~ (2) any security interest purported to be created by the ~~Investment Company Act~~Security Instruments or other Loan Documents shall cease to be, or ~~that of any~~ shall be asserted by Borrower ~~Agent of such Borrower~~not to be a valid, ~~shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i)~~ perfected first priority security interest in the ~~case~~ Collateral; or (q) any Transfer of title (including, without limitation, a leasehold interest) or possession of all or any ~~Event~~ portion of ~~Default specified in paragraphs~~ the Collateral without the prior written consent of Lender, except as may be permitted by Section 7.6 hereof; or (gr) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of a default under any other ~~Event~~ borrowing agreement of ~~Default specified above, either~~ Borrower or ~~both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic~~ any Subsidiary (~~confirmed in writing~~other than an Excluded Subsidiary) ~~request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest~~ in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationMaterial Indebtedness.

Appears in 1 contract

Samples: Loan Agreement (Andersons, Inc.)

Events of Default; Acceleration. ~~If any~~ Each of the following events ~~(each~~ shall constitute an "~~EVENT OF DEFAULT") shall occur with respect to any Borrower~~Event of Default" under this Amended and Restated Loan Agreement: (a) ~~Such~~ If the Borrower ~~(i)~~ shall default in the payment of any interest on and/or any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Amended and Restated Working Capital Line of Credit Note when the same becomes due and payable, ~~whether at maturity~~ and such default continues for ten (10) days after the Bank has given written notice of such default to the Borrower. (b) If the Borrower shall breach or ~~by acceleration~~ default in the performance or ~~otherwise~~observance of any of the provisions of Sections 7.3, 7.4 or 7.7 hereof. (c) If the Borrower shall breach or default in the performance or observance of any of the provisions of Section 7 hereof (other than Sections 7.3, 7.4 or 7.7 hereof for which no cure period is provided), and such breach or default is not cured within thirty (30) days after the earlier of (i) the date the Borrower first obtains knowledge of the particular breach or default, or (ii) ~~shall~~ the date written notice of the particular breach or default in is given to the ~~payment of any other amount due hereunder after~~ Borrower by the ~~same becomes due and payable; or~~Bank. (bd) ~~Such~~ If the Borrower shall default in the performance of or compliance with any ~~term~~ covenant, obligation or provision contained in ~~Sections 9.01(a)~~ this Amended and Restated Loan Agreement or ~~9.01(b)~~ any of the other Loan Instruments, and not otherwise referred to in this Section 8, and such default shall not have ~~continued for more than three~~ been remedied (3i) ~~Banking Days~~within thirty (30) days after written notice of such default shall have been delivered to the Borrower, or (ii) if such default cannot be cured within such thirty (30) day period, within such longer period of time as may be necessary to effect such cure, but in any event within sixty (60) days after written notice of such default shall have been delivered to the Borrower, provided that the Borrower commences to cure the particular default within such thirty (30) day period and prosecutes the cure to completion with due diligence within sixty (60) days after written notice of such default shall have been delivered to the Borrower. (e) If any material representation or warranty made in writing by or on behalf of the Borrower herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall have been materially false or misleading or incorrect when made and the Borrower shall have known or should have known of the falsity, misleading nature of or incorrectness of such representation or warranty when it was made, and the Borrower fails to cause such representation or warranty to cease to be materially false, misleading or incorrect within ton (10) days after written notice of such materially false, misleading or incorrect representation or warranty shall have been delivered to the Borrower. (f) If the Borrower shall default (as principal or guarantor or other surety or otherwise) in the payment of any principal of or premium, if any, or interest on any Indebtedness which, at the time of the Borrower's default in the payment thereof, has an unpaid balance in excess of Two Million Dollars ($2,000,000.00), or if the Borrower defaults in the performance of or compliance with any term ~~contained in Sections 8.02(d)~~of any evidence of such Indebtedness or of any mortgage, ~~8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ indenture or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement ~~with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~relating thereto, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; ~~or (e) Any representation~~provided, ~~warranty certification~~ however, to the extent the Borrower is contesting the amount or ~~statement made or deemed made by such Borrower in this Agreement or in~~ validity of any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness claimed to ~~declare such Indebtedness due and payable before its stated maturity, or~~ be in default and/or is contesting whether it has defaulted in the performance of or compliance with any term or provision of any ~~evidence~~ document of ~~such Indebtedness or of any mortgage~~the type referenced in this subsection (f), indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in each case in good faith and by appropriate proceedings promptly initiated and diligently conducted ~~and~~ by the Borrower, any such ~~Borrower~~ default of the type referred to in this subsection (f) shall ~~have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no~~ not constitute an Event of ~~Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or~~Default. (g) ~~Such~~ The occurrence of any Event of Default under and as defined in the Senior Note Agreement, or a default by the Borrower under the Master Equipment Lease or any Funded Debt. (h) If the Borrower shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of ~~such Borrower or~~ any substantial part of ~~the property or assets of such Borrower~~ its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower shall take any action ~~shall be taken to dissolve~~ in furtherance of the dissolution or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation~~ liquidation of ~~such~~ the Borrower~~); or~~. (hi) If, within sixty (60) days after the commencement against ~~such~~ the Borrower of a case under the ~~federal bankruptcy laws~~Bankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of ~~such~~ the Borrower shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such Borrower or~~ any substantial part of the property of ~~such Borrower~~ the Borrower, such appointment shall not have been vacated~~; or~~. (ij) A If a final uninsured, non-appealable judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower,~~ the Borrower exceeds an ~~amount in the~~ aggregate ~~equal to five percent~~ of Two Hundred Fifty Thousand Dollars (~~5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~$250,000.00) shall be rendered against ~~such~~ the Borrower and (i) if, ~~within thirty (30) days after entry thereof~~prior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, ~~within thirty (30) days~~ after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or ~~a default, within~~ (ii) the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent not have established adequate reserves on its books in respect of such ~~Borrower, shall lapse~~ final uninsurable judgment or ~~be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in~~ judgments. Upon the ~~case~~ occurrence of any Event of Default ~~specified~~ described in ~~paragraphs (g) and~~ subsection (h) ~~above~~or (i) of this Section 8, the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated~~ respective unpaid principal balances of the Amended and ~~the principal~~ Restated Working Capital Line of ~~and~~ Credit Note together with all accrued interest ~~on the Loans~~ thereon and all other Obligations shall automatically become immediately due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower. Further, upon the occurrence of any other Event of Default referred to in this Section 8, the Bank may at any time at its option, by written notice to the Borrower, ~~and/or (B) terminate~~ declare the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ respective unpaid principal balances of the ~~Banks~~ Amended and Restated Working Capital Line of Credit Note together with all accrued interest thereon and all other obligations to ~~make Committed Credit Loans hereunder~~ be due and payable in full to ~~such defaulting Borrower shall forthwith terminate~~ the Bank, without ~~any~~ presentment, demand, protest or other ~~notice~~ requirements of any ~~kind and~~ kind, all of which are hereby waived by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBorrower.

Appears in 1 contract

Samples: Loan Agreement (Kentucky Electric Steel Inc /De/)

Events of Default; Acceleration. If any of the following events ~~(each an "EVENT OF DEFAULT")~~ ------------------------------- shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of any Loan when due in accordance with the terms of this Agreement and the other Financing Documents; or the Borrower shall fail to pay any interest on any Loan, ~~interest accrued thereon~~ or ~~fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of~~ any other amount ~~due hereunder~~ payable hereunder, within five (5) days after ~~the same~~ any such interest or other amount becomes due in accordance with the terms of this Agreement and ~~payable~~the other Financing Documents; or (b) ~~Such~~ any representation or warranty made or deemed made by the Borrower ~~shall default~~ or any other Loan Party herein or in ~~the performance of~~ any other Financing Document or ~~compliance with any term~~ which is contained in ~~Sections 9.01(a)~~ any certificate, document or ~~9.01(b) and~~ financial or other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Financing Document shall prove to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of~~ date made or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~deemed made; or (c) ~~Such~~ the failure by the Borrower or any other Loan Party to punctually perform, observe, comply with or satisfy any covenant, agreement or condition contained in (i) subsections 5.1 to 5.3 (inclusive), 5.5 to 5.7 (inclusive), 5.10, 5.11 and 6.1 to 6.12 (inclusive) of this Agreement or (ii) subsections 4.1, 5.6(a)-(d), 5.7(d) and 5.8 of each of the Security Agreements; or (d) the Borrower or any Subsidiary shall default in the observance or performance of any other agreement contained in this Agreement or ~~compliance with~~ any ~~term contained herein~~ other Financing Document (other than ~~those expressly referred to~~ as provided in paragraphs (a) through (c) of this ~~Section 10.01~~Section), and such default shall ~~not have been remedied within five~~ continue unremedied for a period of thirty (530) ~~Banking Days~~ days after the earlier of (i) the date on which a Responsible Officer of the Borrower first learns of such default or (ii) the date on which written notice thereof shall have been given to ~~such~~ the Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoLender; or (e) ~~Any representation~~the Borrower or any Subsidiary shall fail to pay when due (after any applicable period of grace) any Indebtedness of the Borrower or such Subsidiary (other than Indebtedness comprising of the Obligations), ~~warranty certification~~ which together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), or ~~statement made~~ shall fail (after any applicable period of grace) to observe or ~~deemed made by~~ perform any term, covenant or agreement evidencing or securing such ~~Borrower in this Agreement~~ Indebtedness, which, if uncured or in unwaived, permits the acceleration of such Indebtedness, or any ~~certificate, financial statement~~ default or ~~other document delivered pursuant hereto~~ event of default shall ~~prove to~~ have been ~~false or incorrect in~~ declared under any ~~material respect when made~~agreement relating to such Indebtedness; or (f) ~~Except as otherwise provided in this Section 10.01, such~~ the Borrower or any other Loan Party shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or ~~consolidation of such Borrower) or shall make an assignment for~~ consent to the ~~benefit of creditors~~appointment of, or ~~shall fail~~ the taking of possession by, a receiver, custodian, trustee, liquidator or similar official of itself or of all or a substantial part of its property, (ii) be generally ~~to pay~~ not paying its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the United States Bankruptcy Code, as amended from time to time, (v) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (vi) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code, as amended from time to time or other law, (vii) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (viii) take any corporate action for the purpose of effecting any of the foregoing; or (g) a proceeding or case shall ~~apply for~~ be commenced against the Borrower or any other Loan Party, without the application or consent to of the Borrower or such Loan Party, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of ~~or taking possession by~~ a trustee, ~~receiver~~ receiver, custodian, liquidator or ~~liquidator (~~the like of it or ~~other similar official)~~ of ~~such Borrower~~ all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the ~~property~~ relief of debtors, and such proceeding or ~~assets~~ case shall continue undismissed, or unstayed and in effect, for a period of ~~such Borrower~~ sixty (60) days; or ~~shall commence a case or have~~ an order for relief shall be entered ~~against it~~ in an involuntary case under the ~~federal bankruptcy laws~~United States Bankruptcy Code, as ~~now or hereafter constituted~~amended from time to time, against the Borrower or any other ~~applicable federal~~ Loan Party; or ~~state bankruptcy, insolvency~~ action under the laws of the jurisdiction of incorporation or organization of the Borrower or any other Loan Party similar ~~law, or if~~ to any ~~action~~ of the foregoing shall be taken with respect to ~~dissolve~~ the Borrower or ~~liquidate such Borrower (~~any other ~~than~~ Loan Party and shall continue unstayed and in ~~connection with~~ effect for a ~~permitted merger or consolidation~~ period of ~~such Borrower); or (h) If, within~~ sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacateddays; or (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in~~ the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any ~~member of the~~ Commonly Controlled ~~Group~~ Entity shall fail to pay when due an any amount ~~or amounts aggregating in excess of $500,000 which~~ that it ~~is obligated~~ shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA~~; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities~~ , unless (A) such liability is being contested in ~~excess of $500,000 shall be filed under Title IV of ERISA~~ good faith by ~~such~~ appropriate proceedings, the Borrower or ~~any member of~~ such Commonly Controlled Entity, as the ~~Controlled Group~~case may be, ~~any plan administrator~~ has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or ~~any combination of the foregoing~~(B) which would not have a Material Adverse Effect; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Plans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; ~~or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5~~or (i) ~~of ERISA, with respect to,~~ one or more ~~Multiemployer Plans which could cause such~~ judgments or decrees shall be entered against the Borrower or ~~one~~ any of its Subsidiaries involving individually a liability of One Hundred Thousand and 00/100 Dollars ($100,000.00) (not paid or ~~more members~~ fully covered by insurance) or in the aggregate a liability (not paid or fully covered by insurance) of Two Hundred Thousand and 00/100 Dollars ($200,000.00) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or (j) service of any process upon the Lender, seeking to attach by Lien, levy, mesne, trustee or other process, any funds of the ~~Controlled Group to incur a current payment obligation~~ Borrower or any of its Subsidiaries on deposit with, or in ~~excess~~ possession or control of ~~$500,000~~the Lender; or (k) ~~Such~~ if any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke, curtail or rescind any of the Financing Documents shall be commenced by or on behalf of the Borrower or any of its officers, director or stockholders, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (l) any of the Security Documents shall, at any time after their execution and delivery for any reason, cease to ~~be an investment management company~~ create a valid and perfected first priority security interest in and to all of the Collateral pledged or granted thereunder; or (m) a material portion of the property of the Borrower and its Subsidiaries (whether or ~~a Portfolio thereof~~not Collateral) ~~registered under the Investment Company Act~~is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds, in the aggregate, the amount of insurance proceeds readily available for such ~~Borrower's registration under the Investment Company Act~~restoration or replacement, ~~or that~~ and such loss would have a Material Adverse Effect; or (n) there shall have occurred a Change of ~~any Borrower Agent of such Borrower, shall lapse or be suspended~~Control; then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ the Lender may, by notice in writing to the Borrower, declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ Notes and the other Financing Documents to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in subsection 7.1(f) or subsection 7.1(g), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ amounts shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 1 contract

Samples: Credit Agreement (Geerlings & Wade Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if notice or lapse of time or notice and lapse of time is required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower:~~ occur: (a) ~~Such Borrower (i)~~ if the Company shall default in the payment of principal on any of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Advances when the same ~~becomes~~ shall become due and payable, whether at maturity or at any date fixed for payment or prepayment or by ~~acceleration or otherwise, or~~ declaration; (iib) if the Company shall default in the payment of any interest on the Advances, or the Facility Fee, Agent's Fee or any other ~~amount due~~ fee or expense payable hereunder ~~after~~ or under the other Loan Documents, and such Default shall continue for more than one Business Day, when the same ~~becomes~~ shall become due and payable; or (bc) ~~Such Borrower~~ if the Company shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a~~any of 10.3(e), 11.1, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15 or 11.16 hereof; (d) ~~or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower~~ if the Company shall default in the performance of or compliance with any term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein~~ this Agreement other than those ~~expressly~~ referred to above in this ~~Section 10.01~~12, and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after written notice thereof shall have been given to ~~such Borrower~~ the Company by the ~~Operations~~ Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) ~~Any representation,~~ if any representation or warranty ~~certification or statement~~ made or deemed made by ~~such Borrower in this Agreement~~ the Company herein or in connection with any ~~certificate, financial statement or other document delivered pursuant hereto~~ of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any ~~payment due~~ principal of, or premium, if any, or interest on ~~Indebtedness for borrowed money~~ any indebtedness (other than the Obligations to the Banks hereunder), or with respect to any of the ~~deferred purchase price~~ terms of ~~property, the aggregate outstanding principal amount of which is in excess of five percent (5%)~~ any evidence of such ~~Borrower's Total Assets~~indebtedness or of any agreement relating thereto, and such default shall ~~continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ entitle the holder of such ~~Indebtedness~~ indebtedness to ~~declare~~ accelerate the maturity thereof and the unpaid balance of any such ~~Indebtedness due and payable before its stated maturity~~defaulted indebtedness is equal to or exceeds $1,000,000 unless, or in the ~~performance of or compliance with any term~~ case of any ~~evidence of such Indebtedness or of any mortgage~~default, ~~indenture or other agreement relating thereto, and any~~ such default ~~shall continue for more than the period~~ has been affirmatively waived by or on behalf of ~~grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit~~ the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessindebtedness; or (g) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger~~ if the Company or ~~consolidation of such Borrower) or shall make~~ any Subsidiary makes an assignment for the benefit of creditors, or ~~shall fail generally to pay its debts as such debts become due,~~ petitions or ~~shall apply~~ applies for ~~or consent to~~ the appointment of a liquidator or ~~taking possession by a trustee,~~ receiver or ~~liquidator~~ custodian (or ~~other~~ similar official) of ~~such Borrower~~ the Company or any Subsidiary, or of any substantial part of the ~~property or~~ assets of the Company or any Subsidiary or commences any proceeding or case relating to the Company or any Subsidiary under any bankruptcy, reorganization, arrangements, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect; (h) if any such ~~Borrower~~ petition or ~~shall commence~~ application is filed or any such proceeding or case is commenced against the Company or any Subsidiary and the Company or such Subsidiary indicates its approval thereof, consent thereto or acquiescence therein or an order is entered appointing any such liquidator or receiver or custodian (or similar official), or adjudicating the Company or any Subsidiary bankrupt or insolvent, or approving a ~~case~~ petition in any such proceeding or ~~have an~~ a decree or order for relief is entered ~~against it~~ in respect of the Company or any Subsidiary in an involuntary case under ~~the federal~~ any bankruptcy ~~laws~~or reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar laws of any jurisdiction as now or hereafter constituted; (i) if any order is entered in any proceeding by or against the Company, any Subsidiary decreeing or permitting the dissolution or split-up of the Company or any ~~other applicable federal~~ Subsidiary or ~~state bankruptcy~~the winding up of its affairs; (j) if there shall remain in force, ~~insolvency~~ undischarged, unsatisfied and unstayed, for more than 30 days, whether or ~~other similar law~~not consecutive, any final judgment or judgments which exceed, either individually or in the aggregate, more than $1,000,000 against the Company or any Subsidiary; (k) if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, governmental authority or any ~~other applicable federal or state bankruptcy, insolvency or other similar law, such case~~ person purporting to act under governmental authority shall have ~~been consented~~ taken any action to condemn, seize or ~~shall not have been dismissed~~ appropriate or to assume custody or control of, all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of the Company and its Subsidiaries taken as a whole; (l) if an Event of Default under and as defined in the Trust Credit Agreement shall occur and be continuing; (m) if the Company shall fail to obtain, renew, maintain or comply with all such ~~Borrower such appointment~~ government approvals as shall ~~not have been vacated;~~ now or hereafter be necessary or , in the opinion of special counsel to the Banks, desirable (i) ~~A final judgment which~~for the execution, ~~together with other outstanding final judgments against~~ delivery or performance by the Company of its, or the exercise by the Banks of their, rights under the Loan Documents or (ii) for the grant by the Trust of the assignments and security interests granted by the Security Documents or for the validity and enforceability or for the perfection of or the exercise by the Agent of its rights and remedies thereunder; or any such ~~Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ government approval shall be ~~rendered against such Borrower and if~~revoked, ~~within thirty (30) days after entry thereof~~terminated, ~~such judgment shall not have been discharged~~ withdrawn, suspended, modified or ~~execution thereof stayed pending appeal,~~ withheld or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be ~~an investment management company (~~in full force and effect, and such revocation, termination, withdrawal, suspension, modification, withholding or ~~a Portfolio thereof) registered~~ cessation may adversely affect the Banks or the security provided to the Banks under the ~~Investment Company Act~~Loan Documents, or any proceeding shall be commenced by or before any governmental authority for the purpose of so revoking, terminating, withdrawing, suspending, modifying or withholding any such ~~Borrower's registration~~ government approval and such proceeding is not dismissed within 30 days; (n) if, without the consent of the Majority Banks, the Fuel Purchase Contract or any Loan Document shall be amended, supplemented, terminated or otherwise modified or become of no force or effect or the obligations of any party thereto shall be modified, suspended, discharged or terminated (in any such case, whether by the voluntary action of any party to such Loan Document, by operation of law, or otherwise and other than by the expiration thereof in accordance with its terms), or the Company shall give any consent, waiver or approval thereunder (other than any consent, waiver or approval which cannot adversely affect the Banks or the security provided to the Banks under the ~~Investment Company Act~~Loan Documents); (o) if any judicial decision, law or regulation or interpretation of any judicial decision, law or regulation shall be adopted or enforced by any court or governmental or regulatory authority (including, without limitation, the DPU or similar agency of any other state, the SEC, the Department of Energy and FERC), and as a result of such adoption or enforcement any Loan Document or any transaction contemplated thereby shall be or become, or ~~that~~ with the passage of a specific period of time would become, unlawful or the performance of any ~~Borrower Agent~~ Loan Document or any material term thereof shall be rendered unlawful or unenforceable unless within 10 days thereof the Company shall have obtained a stay of such ~~Borrower~~action, and such stay shall ~~lapse~~ remain in full force and effect, or be taken other action which eliminates the adverse consequence of such action; or (p) if the Company's franchise or license to distribute gas is revoked or suspended; ~~then,~~ then and in any such ~~event,~~ event (unless all Defaults and ~~at any time thereafter, if any Event~~ Events of Default shall ~~then be continuing with respect to such defaulting Borrower~~theretofore have been remedied) the Agent may and, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written~~ written, telecopied or telephonic (confirmed in writing) request of the Majority Banks ~~shall,~~ shall by ~~written~~ notice to ~~such defaulting Borrower~~ the Company declare: (Ai) ~~declare~~ the ~~principal~~ obligation of each Bank to make Advances to the Company to be terminated, whereupon the same shall terminate, and/or (ii) the Advances to the Company, all interest thereon and ~~accrued interest in respect of such defaulting Borrower's Loans~~ all other amounts payable under this Agreement to be forthwith due and payable, whereupon ~~the principal of~~ such Advances, all such interest and ~~accrued interest in respect of~~ all such ~~Loans~~ amounts shall become and be forthwith due and payable without presentment, demand, protest or ~~other notice of any kind~~notice, all of which are hereby expressly waived by ~~such Borrower~~the Company. Notwithstanding the foregoing, ~~and/or~~ upon any Event of Default contemplated by subsections (Bg), (h), or (i) ~~terminate the Commitments as to such defaulting Borrower~~above, ~~whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ all amounts specified in clause (ii) above shall ~~forthwith terminate~~ become immediately due and payable automatically without any ~~other~~ requirement of notice of from the Agent or any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBank.

Appears in 1 contract

Samples: Revolving Credit Agreement (Colonial Gas Co)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower shall fail to pay when due and payable any principal of the Term Loan when the same becomes due; (b) the Borrower shall fail to pay interest on the Term Loan or any other sum due under any of the Loan Documents when due and payable, and such failure shall continue for a period of five (5) days; (c) the Borrower shall fail to perform or observe any of the terms, covenants, or agreements contained in ss.ss.7.1, 7.2 or 7.3; provided, however, that with respect to the covenants set forth in ss.7.1(a), the Agent or any Lender having a Commitment Percentage equal to or greater than ten percent (10%) shall notify the Borrower of its failure to provide the required reports when due and the Agent shall allow the Borrower five (5) days to comply with the covenants set forth in ss.7.1(a). (i) the Borrower shall fail to perform any other term, covenant or agreement contained in the Loan Documents within thirty (30) days after the Agent or any Lender having a Commitment Percentage equal to or greater than ten percent (10%) has given written notice of such failure to the Borrower, (ii) or any Guarantor shall fail to perform any term, covenant or agreement contained in the Guarantees; (e) any representation or warranty of the Borrower or any Guarantor, as applicable, in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (f) the Borrower or any Guarantor shall be in default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness in excess of $2,000,000, or shall fail to pay such Indebtedness when due, or within any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect; (h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or any Guarantor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedthey mature; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall ~~occur a complete~~ remain undischarged for more than thirty (30) days any final judgment or ~~partial withdrawal from~~execution action against the Borrower not covered by insurance that, together with other outstanding claims and execution actions against the Borrower not covered by insurance exceeds $250,000 in the aggregate; THEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, ~~if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs (g) and~~ under clause (h) ~~above~~or (i), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated~~ entire unpaid principal amount of the Term Loan, all interest accrued and unpaid thereon, and all other amounts payable thereunder (including, without limitation, commitment fees) and under the ~~principal of and accrued interest on the Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower; and (2) In the case of any Event of Default under any clause other than (h) or (i), the Agent may, and at the request of any Lender shall, by written notice to the Borrower, ~~and/or (B) terminate~~ declare the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ unpaid principal amount of the ~~Banks~~ Term Loan, all interest accrued and unpaid thereon, and all other amounts payable hereunder (including, without limitation, fees) and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrower. No remedy herein conferred upon the Lenders is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Term Loan Agreement (American Skiing Co /Me)

Events of Default; Acceleration. If ~~any~~ one or more of the following events (~~each an "EVENT OF DEFAULT"~~herein called “Events of Default”) shall occur ~~with respect~~ for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any ~~Borrower:~~judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) ~~Such Borrower~~ default in the payment of any interest upon, or any scheduled installment payment of principal under, any of the Notes when such interest or installment payment becomes due and payable which default in payment remains outstanding for five (i5) ~~shall~~ Business Days; or (b) default in the payment of principal of (and Prepayment Price, if any, on) any ~~Loan, interest accrued thereon or fee due hereunder after~~ of the Notes when and as the same ~~becomes~~ shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6), or by acceleration or otherwise, ~~or (ii) shall default in the~~ but not including any scheduled quarterly installment payment of ~~any other amount due hereunder after the same becomes due and payable; or~~ principal which is addressed in subsection (ba) ~~Such Borrower shall default~~ above in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04this Section 10.1; or (c) ~~Such Borrower shall~~ default in the performance or observance of any other covenant, agreement or ~~compliance with~~ condition contained herein, or in any ~~term contained herein~~ of the Notes or the Mortgage, or any other ~~than those expressly referred~~ document or instrument relating to ~~in this Section 10.01~~the Loan, and such non-monetary default shall not have been ~~remedied within five~~ cured on or before the expiration of thirty (530) ~~Banking Days~~ days after written notice thereof is sent by Lender to Borrower; provided, however, that if due to its nature any such default is not susceptible of cure within thirty (30) days, then the same shall ~~have been given~~ not constitute an Event of Default if Borrower has promptly instituted steps to cure such ~~Borrower by~~ default and the ~~Operations Agent~~same is cured within a reasonable time, not to exceed six (6) months after notice in any event; or (d) ~~Such~~ Borrower or any Guarantor shall ~~default in~~ file a petition seeking relief for itself under Title 11 of the ~~performance of~~United States Code, as now constituted or hereafter amended, or ~~compliance with~~an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against Borrower or such Guarantor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or Borrower or any ~~material term contained in~~ Guarantor shall file such a petition or answer with respect to relief under the provisions of any other ~~written agreement with~~ now existing or future bankruptcy, insolvency or other similar law of the ~~Operations Agent~~ United States of America or any ~~Bank pertaining to this Agreement~~ State thereof or ~~such Borrower's Loans~~of any other country or jurisdiction providing for the reorganization, ~~and such default shall continue for more than the period~~ winding-up or liquidation of ~~grace~~Entities or an arrangement, ~~if any~~composition, ~~specified therein and shall not have been waived pursuant thereto~~extension or adjustment with creditors; or (e) ~~Any representation~~a court of competent jurisdiction shall enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against Borrower or any Guarantor under Title 11 of the United States Code, ~~warranty certification~~ as now constituted or ~~statement made~~ hereafter amended; or ~~deemed made~~ there shall be entered an order, judgment or decree by ~~such~~ operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging Borrower or any Guarantor a bankrupt or insolvent, or ordering relief against Borrower or any Guarantor, or approving as properly filed a petition seeking relief against Borrower or any Guarantor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of Entities or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor, or of any substantial part of the property of any of them, or ordering the reorganization, winding-up or liquidation of the affairs of any of them; or any involuntary petition against Borrower or any Guarantor seeking any of the relief specified in this ~~Agreement or in any certificate, financial statement or other document delivered pursuant hereto~~ clause shall ~~prove to have been false or incorrect in any material respect when made~~not be dismissed within sixty (60) days of its filing; or (f) ~~Except as otherwise provided in this Section 10.01, such~~ Borrower ~~shall default in~~ or any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or Guarantor shall make an a general assignment for the benefit of its creditors, ; or Borrower or any Guarantor shall ~~fail generally to pay its debts as such debts become due, or shall apply for or~~ consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, ~~receiver~~ custodian or ~~liquidator (or other~~ similar ~~official)~~ official of ~~such~~ Borrower or ~~any substantial part~~ such Guarantor or of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of any of them; or Borrower or any Guarantor shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or Borrower ~~such appointment~~ or any Guarantor, or their respective directors or majority members shall take any action to dissolve or liquidate any Borrower Guarantor (it being understood that any merger of, or sale of interest in, any Borrower or Guarantor permitted under Section 8.4(a) shall not be considered to be a dissolution or liquidation under this Section 10.1(f); or (g) Borrower or any Guarantor shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, involving any Plan, or (2) the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan, if the occurrences described in either (1) or (2) could reasonably be expected to result in liability of Borrower or any Subsidiary in an aggregate amount exceeding $5,000,000.00; or (h) any representation or warranty made by Borrower in Section 3 hereof or by Borrower or Guarantor in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been ~~vacated~~false or misleading in any material respect as of the date made; or (i) ~~A final judgment which~~the dissolution of Borrower or of Guarantor, ~~together with~~ whether by operation of law or otherwise (other ~~outstanding final judgments against~~ than for failure to timely file annual reports, if such ~~Borrower, exceeds an amount in~~ reports are filed and the ~~aggregate equal to five percent~~ applicable Borrower or Guarantor is re-instated within ten (~~5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30~~10) days after ~~entry thereof, such judgment shall not have been discharged or execution~~ written notice thereof ~~stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged~~is sent by Lender to Borrower); or (j) ~~Such Borrower~~ if any Guaranty is terminated or any ~~member of the Controlled Group shall fail~~ Guarantor attempts to ~~pay when due an amount~~ withdraw, cancel or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or disclaim 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Guaranty; or (k) ~~Such~~ if any default or event of default occurs (after applicable notice and cure period(s)) under any other agreement or obligation of Borrower ~~shall cease~~ or any Guarantor, to ~~be an investment management company (or a Portfolio thereof) registered under the Investment Company Act~~Lender, or ~~such Borrower's registration under the Investment Company Act~~with respect to any other loan from Lender to Borrower or any Guarantor, or any other agreement between Lender and Borrower or any Guarantor; or (l) if any event or condition occurs that enables or permits (with all applicable grace periods having expired) the holder or holders of any indebtedness in excess of $17,500,000.00 of Borrower ~~Agent~~ or any Guarantor to cause such indebtedness to become due, and if such indebtedness is not discharged or such event or condition has not been cured on or before the expiration of ~~such Borrower, shall lapse or be suspended~~ten (10) Business Days from the occurrence thereof; then, ~~and in any such event~~at the option of Servicer, ~~and at any time thereafter~~the entire outstanding principal amount of the Notes, ~~if any Event~~ together with (1) all accrued but unpaid interest on the outstanding principal amount of ~~Default shall then be continuing with respect to such defaulting Borrower~~the Notes, (i2) in an amount equal to the ~~case~~ Prepayment Price (except that, for purposes of ~~any Event~~ such computation, the Prepayment Date shall be deemed to be the date upon which the holder of ~~Default specified in paragraphs (g~~the Notes shall have declared the Notes to be due and payable) and (h3) ~~above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and~~ accrued interest on ~~the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind,~~ all of ~~which are hereby expressly waived, and (ii) in~~ the ~~case of any other Event of~~ foregoing computed at the Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing Rate from and after the date of ~~termination~~ the Event of Default, shall, at Lender’s option, immediately become due and payable without notice or demand to Borrower. Borrower shall be ~~reallocated among~~ obligated to notify Lender, in accordance with Section 11.6 below, immediately upon the ~~remaining Borrowers PRO RATA on the basis~~ occurrence of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~any event, ~~as in effect at the time~~ act or omission constituting an Event of ~~such termination~~Default, other than an Event of Default pursuant to paragraphs 10.1(a) or (b) above.

Appears in 1 contract

Samples: Credit Agreement (Alico Inc)

Events of Default; Acceleration. If any of the following events (each an ~~"EVENT OF DEFAULT"~~“Event of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ Debtor shall ~~default in the payment of~~ fail to pay any principal of or interest on this Promissory Note or any ~~Loan, interest accrued thereon~~ other sum due under this Promissory Note or ~~fee due hereunder after~~ any other note or other agreement between Debtor and RACC when the same becomes due and ~~payable~~such failure shall continue for ten (10) days beyond the due date of such payment; (b) Debtor shall fail to perform any term, ~~whether~~ covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice; (c) Debtor shall fail to maintain insurance pursuant to terms of the Security Agreement; (d) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at ~~maturity~~ the time made or ~~by acceleration~~ deemed to have been made; (e) Debtor shall be in default under any agreement or ~~otherwise~~agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, “Indebtedness”) owing to RACC or any affiliates of RACC, including, without limitation, Raytheon Travel Air Company, or (ii) ~~shall default in the payment of~~ any other ~~amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default~~ Indebtedness in ~~the performance~~ excess of ~~or compliance with any term contained~~ $100,000.00 in ~~Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~aggregate principal amount, or shall fail to pay any such ~~Borrower shall default in the performance of~~ Indebtedness when due or ~~compliance with~~ within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or; (f) ~~Except as otherwise provided~~ any of the Transaction Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect; (g) ~~Such Borrower shall discontinue its business~~ Debtor (~~other than in connection with a permitted merger or consolidation of such Borrower~~i) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall ~~fail generally~~ commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (h) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orthey mature; (i) A there shall remain undischarged for more than thirty (30) days any final judgment ~~which~~or execution action against Debtor that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ Debtor exceeds ~~an amount~~ $100,000.00 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; oraggregate; (j) ~~Such Borrower~~ the prospect of payment or ~~any member~~ performance by Debtor of realization on the ~~Controlled Group shall fail to pay when due an amount~~ Collateral, in the reasonable opinion of RACC, is or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000becomes significantly impaired; or (k) ~~Such Borrower shall cease to be an investment management company~~ Debtor (i) sells, transfers or ~~a Portfolio thereof~~disposes of all or substantially all of its respective stock, assets or property, (ii) ~~registered under~~ becomes the ~~Investment Company Act~~subject of, or ~~such Borrower's registration under the Investment Company Act~~engages in, a leveraged buy-out, or ~~that~~ (iii) terminates its existence by merger, reorganization or consolidation; or if, for any reason, including, without limitation, as a result of ~~any Borrower Agent of such Borrower, shall lapse~~ a stock issuance or ~~be suspended; then, and in any such~~ other capital event, there is a change in control of forty percent (40%) or more of Debtor’s voting capital stock issued and outstanding from time to time on a fully-diluted basis (and taking into account all voting capital stock than any persons have the right to acquire pursuant to any option or conversion rights); or (l) an Event of Default as defined in the Restructuring Agreement shall occur; THEN, or at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clauses (g) ~~and~~ or (h~~) above~~), the ~~Commitments~~ entire unpaid principal amount of this Promissory Note, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the Security Agreement, as well as any other indebtedness or liability of Debtor owed to ~~such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans~~ RACC, shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~Debtor; and (2) In the case of any Event of Default other than under clauses (g) or (h), ~~and/or (B) terminate~~ RACC may, by written notice to Debtor, declare the ~~Commitments~~ unpaid principal amount of this Promissory Note, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the Security Agreement, as ~~to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ well as any other indebtedness or liability of Debtor owed to RACC, to be forthwith due and payable, without presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by Debtor. In addition to and without in any way limiting the ~~percentages~~ foregoing, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the ~~Commitment Fee~~ Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Restructuring Agreement (Great Lakes Aviation LTD)

Events of Default; Acceleration. If The occurrence of any one or more of the following events ~~(each~~ shall constitute an "~~EVENT OF DEFAULT")~~ Event of Default" hereunder, and upon such Event of Default, the entire principal balance outstanding hereunder, together with all accrued interest and other amounts payable hereunder, at the election of Lender, shall ~~occur with respect~~ become immediately due and payable, without any notice to ~~any~~ Borrower: (~~a) Such Borrower (~~i) ~~shall default in the payment~~ The failure of Borrower to pay any installment of principal ~~of any Loan, interest accrued thereon~~ or ~~fee~~ other amounts due hereunder ~~after the same becomes~~ when due and ~~payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in~~ the ~~payment~~ continuation of ~~any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and~~ such ~~default shall have continued~~ failure for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) ~~Banking Days~~ days after written notice thereof ~~shall have been given~~ from Lender to ~~such Borrower by the Operations Agent; or~~Borrower; (dii) ~~Such~~ The failure of Borrower ~~shall default in the performance of, or compliance with, any material term contained in~~ to comply with any other provision of this Note not provided for in subparagraph (i) above and subparagraph (v) below where such failure continues for thirty (30) days after written ~~agreement with~~ notice thereof by Lender to Borrower, provided that if the ~~Operations Agent or any Bank pertaining to this Agreement or~~ nature of such ~~Borrower's Loans, and~~ breach is such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of propertythat although curable, the ~~aggregate outstanding principal amount of which is in excess of five percent~~ breach cannot reasonably be cured within a thirty (5%30) ~~of such Borrower's Total Assets~~day period, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no an Event of Default ~~pursuant~~ shall not exist if Borrower shall commence to ~~paragraphs~~ cure such breach and thereafter rectifies and cures such breach with due diligence, but in no event later than ninety (b90) ~~or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or~~days after written notice thereof; (giii) ~~Such~~ The failure of Borrower ~~shall discontinue its business (other than~~ to comply with any provision of any document, instrument or agreement executed in connection with the indebtedness evidenced hereby including, without limitation, the Security Agreement of even date herewith by and between Borrower and Lender or any other security document executed in connection with this Note (collectively, the "LOAN DOCUMENTS"); (iv) The dissolution, winding-up or termination of the existence of Borrower or any other person or entity who is or may become liable hereunder; (v) The calling of a ~~permitted merger~~ meeting of the creditors of Borrower or ~~consolidation~~ any other person or entity who is or may become liable hereunder; (vi) The making by Borrower or any other person or entity who is or may become liable hereunder of ~~such Borrower) or shall make~~ an assignment for the benefit of its creditors~~, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the~~ ; or (vii) The appointment of ~~or taking possession by a trustee, receiver or liquidator~~ (or ~~other similar official~~application for appointment of) a receiver of ~~such~~ Borrower or any ~~substantial part of~~ other person or entity who is or may become liable hereunder which is not dismissed in thirty (30) days, or the ~~property~~ involuntary filing against Borrower which is not dismissed within forty five (45) days or ~~assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~voluntary filing by Borrower, or any other ~~applicable~~ person or entity who is or may become liable hereunder, of a petition or application for relief under federal bankruptcy law or any similar state ~~bankruptcy, insolvency~~ or ~~other similar~~ federal law, or if the issuance of any ~~action shall be taken~~ writ of garnishment, execution or attachment for service with respect to ~~dissolve~~ Borrower or ~~liquidate such Borrower (other than in connection with a permitted merger~~ any person or ~~consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ entity who is or ~~hereafter constituted~~may become liable hereunder, or any ~~other applicable federal~~ property of Borrower or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay property of any ~~such order~~ person or ~~proceeding shall thereafter be set aside,~~ entity who is or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically may become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationliable hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Tesseract Group Inc)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ the Borrowers shall ~~default in the payment~~ fail to pay any amount of principal of any ~~Loan~~Loan when due in accordance with the terms of this Agreement and the other Loan Documents; or the Borrowers shall fail to pay any interest or other amount payable hereunder or under any other Loan Document, within three (3) days after such interest ~~accrued thereon~~ or ~~fee due hereunder after the same~~ other amount becomes due ~~and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default~~ in accordance with the ~~payment~~ terms of this Agreement and/or any ~~other amount due hereunder after the same becomes due and payable~~Loan Documents; or (b) ~~Such~~ any representation or warranty made or deemed made by any Borrower ~~shall default~~ or any other Obligor herein or in ~~the performance of~~ any other Loan Document or ~~compliance with any term~~ which is contained in ~~Sections 9.01(a~~any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty already qualified or modified by the text thereof) on or ~~9.01(b) and such default shall have continued for more than three (3) Banking Days,~~ as of the date made or ~~such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~deemed made; or (c) ~~Such~~ the failure by any Borrower ~~shall default~~ or any other Obligor to punctually perform, observe, comply with or satisfy any covenant, agreement or condition contained in (i) Section 6.1, 6.2, 6.3, 6.4, 6.6, 6.7, 6.8, 6.10, 6.11, 6.12, 6.13 or 6.14 of this Agreement; or (ii) Section 7 of this Agreement; or (iii) Section 4.1 of the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations AgentSecurity Agreement; or (d) ~~Such~~ any Borrower or any Subsidiary shall default in the observance or performance ~~of, or compliance with,~~ of any ~~material term~~ other agreement contained in ~~any other written agreement with the Operations Agent or any Bank pertaining to~~ this Agreement or ~~such Borrower's Loans~~any other Loan Document (other than as provided this Section 8.1), and such default shall continue un-remedied for ~~more than the~~ a period of ~~grace, if any, specified therein and shall not have been waived pursuant thereto~~thirty (30) days; or (e) ~~Any representation, warranty certification or statement made or deemed made by~~ any Borrower shall fail to pay when due (after any applicable period of grace) any Indebtedness of such Borrower ~~in this Agreement~~ (other than Indebtedness comprising the Obligations), which together with all such other due but unpaid Indebtedness, exceeds the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00), or in shall fail (after any ~~certificate~~applicable period of grace) to observe or perform any term, ~~financial statement~~ covenant or ~~other document delivered pursuant hereto~~ agreement evidencing or securing such Indebtedness, which, if uncured or unwaived, permits the acceleration of such Indebtedness, or any default or event of default shall ~~prove to~~ have been ~~false or incorrect in~~ declared under any ~~material respect when made~~agreement relating to such Indebtedness; or (f) ~~Except as otherwise provided in this Section 10.01~~any Borrower, ~~such Borrower~~ Subsidiary or any other Obligor shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or ~~taking possession by~~ similar official of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its creditors, (iii) commence a voluntary case under the United States Bankruptcy Code, as amended from time to time, (iv) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (v) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code, as amended from time to time or other law, (vi) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (vii) take any corporate action for the purpose of effecting any of the foregoing; or (g) a proceeding or case shall be commenced against any Borrower, any Subsidiary or any other Obligor, without the application or consent of such Borrower, such Subsidiary or such Obligor, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, ~~receiver~~ receiver, custodian, liquidator or ~~liquidator (~~the like of it or ~~other similar official)~~ of ~~such Borrower~~ all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the ~~property~~ relief of debtors, and such proceeding or ~~assets~~ case shall continue undismissed, or unstayed and in effect, for a period of ~~such Borrower~~ thirty (30) days; or ~~shall commence a case or have~~ an order for relief shall be entered ~~against it~~ in an involuntary case under the ~~federal bankruptcy laws~~United States Bankruptcy Code, as ~~now or hereafter constituted~~amended from time to time, against any Borrower, any Subsidiary or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedObligor; or (i) ~~A final judgment which~~the Letter of Credit ceases to be in full force and effect prior to the Maturity Date, ~~together~~ is revoked or repudiated for any reason, is (or any proceeds thereof are) assigned to any Person other than the Lender, a Lien is created thereon (or on any proceeds thereof) in favor of any Person other than the Lender or its enforceability is challenged by or on behalf of the Borrowers or the LC Issuer, and the Borrowers shall thereafter fail (within five (5) days of receipt of notice of such event) to: (A) cause a new Letter of Credit to be issued for the benefit of the Lender by a financial institution acceptable to the Lender in its reasonable discretion; or (B) pledge and deposit with ~~other outstanding final judgments against such Borrower, exceeds~~ or deliver to the Lender cash or deposit account balances in an amount ~~in the aggregate~~ equal to ~~five percent~~ the then-face amount of the Letter of Credit pursuant to documents in form and substance reasonably satisfactory to the Lender; or (5%ii) a default or event of ~~such Borrower's Total Assets (exclusive~~ default shall occur with respect to the Letter of ~~amounts covered by available insurance) shall be rendered against such Borrower~~ Credit and ~~if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days~~ remain uncured after the ~~expiration~~ lapsing of any ~~such stay, such judgment shall not have been discharged~~applicable cure period; or (ji) ~~Such~~ any Borrower or any ~~member of the~~ Commonly Controlled ~~Group~~ Entity shall fail to pay when due an any amount ~~or amounts aggregating in excess of $500,000 which~~ that it ~~is obligated~~ shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA~~; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities~~ , unless (A) such liability is being contested in ~~excess of $500,000 shall be filed under Title IV of ERISA~~ good faith by appropriate proceedings, such Borrower or ~~any member of~~ such Commonly Controlled Entity, as the ~~Controlled Group~~case may be, ~~any plan administrator~~ has established and is maintaining adequate reserves in accordance with GAAP and no Lien shall have been filed to secure such liability or ~~any combination of the foregoing~~(B) which would not have a Material Adverse Effect; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Plans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; ~~or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5~~or (j) ~~of ERISA, with respect to,~~ one or more ~~Multiemployer Plans which could cause~~ judgments or decrees shall be entered against any Borrower involving a liability of One Hundred Thousand and 00/100 Dollars ($100,000.00)(not paid or fully covered by insurance) or in the aggregate a liability (not paid or fully covered by insurance), and all such ~~Borrower~~ judgments or ~~one~~ decrees shall not have been vacated, discharged, stayed or ~~more members of~~ bonded pending appeal within thirty (30) days from the ~~Controlled Group to incur a current payment obligation in excess of $500,000~~entry thereof; or (k) ~~Such~~ if any of the Loan Documents (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke, curtail or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its officers, directors, stockholders or creditors, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Loan Documents (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (l) any Lien created by any of the Security Documents shall, by reason of any breach by any Borrower, any Subsidiary or Obligor party thereto of any of its covenants or other obligations contained in such Security Documents, cease to be ~~an investment management company~~ enforceable and of the same effect and priority purported to be created thereby; or (~~or a Portfolio thereof~~m) ~~registered under~~ A material portion of the ~~Investment Company Act, or such Borrower's registration under the Investment Company Act, or that~~ property of any Borrower ~~Agent~~ or Subsidiary (whether or not Collateral) is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds by more than One Hundred Thousand Dollars ($100,000.00), in the aggregate, the amount of insurance proceeds readily available for such ~~Borrower, shall lapse~~ restoration or ~~be suspended~~replacement; or (n) the occurrence of any Change of Control or any Material Adverse Effect; then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ the Lender may, by notice to the Borrowers, declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ Note and the other Loan Documents to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, however, that in the event of any Event of Default specified in Sections 8.1(f) or 8.1(g), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ amounts shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 1 contract

Samples: Loan Agreement (Thermoenergy Corp)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur and be continuing for any reason whatsoever (and whether it shall be voluntary or involuntary or occur or be effected by operation of law or otherwise): (A) the Company defaults in the payment or prepayment when due of any principal of, or prepayment charge on, any Note, (B) the Company defaults for at least five Business Days in the payment when due of any interest on any Note, (C) the Company defaults in the observance of any agreement contained in Sections 5.15, 5.16, 5.17, 5.18, 5.22, 5.25, 5.27, 5.30, and 5.31, (D) the Company defaults in the observance of any other agreement or covenant in this Agreement and shall not have remedied the default within 30 days after written demand to remedy the same has been given to the Company by the holder of any Note, (E) the Company, any Guarantor or any Subsidiary shall not pay (or otherwise satisfy on terms consistent with the terms of this Agreement) any other Debt in an aggregated principal amount exceeding $500,000 when due, or any condition shall exist permitting other Debt of the Company, any Guarantor or any Subsidiary in an aggregate principal amount exceeding $500,000 to become or be declared due prior to its stated maturity, except, however, a condition in respect of a Guarantee of the Company, any Guarantor or any Subsidiary if the Company, such Guarantor or such Subsidiary shall duly perform its obligations under such Guarantee, (F) the Company, any Guarantor or any Subsidiary shall (1) be generally not paying its debts as they become due, (2) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (3) make any assignment for the benefit of its creditors, (4) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property, (5) be adjudicated insolvent or be liquidated, or (6) take corporate action for the purpose of any of the foregoing, (G) a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company, any Guarantor or any Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any ~~Borrower:~~substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise, to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, any Guarantor or any Subsidiary, or if any petition for any such relief shall be filed against the Company, any Guarantor or any Subsidiary and such petition shall not be dismissed within 60 days, (aH) ~~Such Borrower (i)~~ final judgment shall ~~default in~~ be rendered against the Company, any Guarantor or any Subsidiary for the payment of ~~principal~~ money in excess of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01$500,000, and such ~~default~~ judgment shall not ~~have been remedied~~ be discharged or execution thereon stayed pending appeal, within ~~five (5) Banking Days~~ 30 days after ~~written notice thereof~~ entry thereof, or, in the event of such a stay, such judgment shall ~~have been given to~~ not be discharged within 30 days after such ~~Borrower by the Operations Agent; or~~stay expires, (dI) ~~Such Borrower shall default in the performance of, or compliance with,~~ any material ~~term contained~~ representation or warranty heretofore or hereafter made by or on behalf of the Company herein or in any certificate or other ~~written agreement with the Operations Agent~~ writing delivered under or ~~any Bank pertaining~~ pursuant to this Agreement or ~~such Borrower's Loans, and such default shall continue for more than~~ in connection with any provision hereof or related to the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto transactions contemplated hereby shall prove to have been false or incorrect or breached in any material respect ~~when~~ on the date as of which made; , or (fJ) ~~Except as otherwise provided in this Section 10.01~~any Guaranty shall cease, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in ~~connection~~ accordance with ~~a permitted merger or consolidation of such Borrower)~~ its terms, to be in full force and effect or shall ~~make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession~~ be declared by a ~~trustee~~court or governmental authority of competent jurisdiction to be void, ~~receiver~~ voidable or ~~liquidator (or other similar official) of such Borrower or~~ unenforceable against any ~~substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted~~Guarantor, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations Guarantor or the ~~business of such Borrower stayed, or if the stay of~~ Company asserts any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the ~~property of such Borrower such appointment shall not have been vacated; or~~foregoing in writing or before any court or governmental authority, (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in~~ upon the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default ~~specified~~ described in ~~paragraphs~~ subsection (gF) ~~and~~ or (hG) ~~above~~with respect to the Company (other than such an Event of Default described in subsection (F)(1) or described in subsection (F)(6) by virtue of the reference in such clause (6) to such clause (1)), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated and~~ unpaid principal amount of the ~~principal of and~~ Notes, together with the accrued interest on thereon and, to the ~~Loans~~ extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, shall automatically become immediately due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Company, ~~and/or~~ or (ii) upon occurrence of any other Event of Default, the holder or holders of at least 66-2/3% of the unpaid principal amount of the Notes at the time outstanding (subject to the last paragraph of Section 9) may, by written notice to the Company, declare all of the Notes to be, and the same shall forthwith become due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, provided that, during the existence of an Event of Default described in Subsection (A) or (B) ~~terminate~~ with respect to any Note, the ~~Commitments as~~ holder of such Note may, by written notice to the Company, declare such ~~defaulting Borrower~~Note to be, ~~whereupon~~ and the ~~Commitments~~ same shall forthwith become, due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the ~~Banks to make Committed Credit Loans hereunder to~~ prepayment charges that would be payable if the Company were prepaying such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Note at the time ~~of such termination~~pursuant to Section 4.

Appears in 1 contract

Samples: Loan Agreement (Del Laboratories Inc)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ Any Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal or interest of any ~~Loan, interest accrued thereon~~ Loan when due in accordance with the terms of this Agreement or ~~fee due hereunder after~~ the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii)~~ Borrowers shall ~~default in the payment of~~ fail to pay any other amount ~~due~~ payable hereunder within five (5) days after ~~the same~~ any such other amount becomes due in accordance with the terms of this Agreement and ~~payable~~the other Loan Documents; or (b) ~~Such~~ Any representation or warranty made by any Borrower ~~shall default~~ to the Lender in ~~the performance of~~ this Agreement or ~~compliance with~~ in any ~~term~~ other Loan Document or which is contained in ~~Sections 9.01(a)~~ any certificate, document or ~~9.01(b) and~~ financial or other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Loan Document shall prove to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of~~ date made or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~deemed made; or (c) ~~Such~~ Any Borrower ~~shall default~~ fails to observe or perform any covenant, condition, or agreement contained in ~~the performance~~ any of subsection 2.3, 5.4, 5.5, 5.7. 5.9. 5.10 or ~~compliance with~~ 5.11 or Section 6 of this Agreement; or (d) Any Borrower fails to observe or perform any ~~term~~ covenant, condition, or agreement contained ~~herein~~ in this Agreement or any other Loan Document (other than ~~those expressly referred to~~ as provided in ~~this Section 10.01~~subsection 8.1(a), 8.1(b) or 8.1(c)) and such failure continues for thirty (30) days after the earlier of (i) the date on which any officer of any Borrower first learns of such default ~~shall not have been remedied within five~~ or (5ii) ~~Banking Days after~~ the date on which written notice thereof shall have been given to ~~such~~ any Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orLender; (e) Any ~~representation~~Borrower commences any case, ~~warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate~~proceeding, ~~financial statement~~ or other ~~document delivered pursuant hereto shall prove~~ action (i) under any existing or future Law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have ~~been false~~ an order for relief entered with respect to it, or ~~incorrect in~~ seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator, or other similar official for it or for all or any ~~material respect when made; or~~substantial part of its assets, or any Borrower makes a general assignment for the benefit of its creditors; (f) ~~Except as otherwise provided in this Section 10.01~~Any proceeding or case shall be commenced against any Borrower, ~~such Borrower shall default in any payment due on Indebtedness for borrowed money~~ without the application or ~~the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%)~~ consent of such Borrower~~'s Total Assets~~, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of assets of such Borrower, or (iii) similar relief in respect of it, under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the relief of debtors, and such ~~default~~ proceeding or case shall continue un-dismissed, or un-stayed and in effect, for ~~more than the~~ a period of ~~grace~~sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code, ~~if any~~as amended from time to time, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ against such Borrower or action under the ~~holder~~ Laws of the jurisdiction of incorporation or organization of such ~~Indebtedness~~ Borrower similar to ~~declare such Indebtedness due and payable before its stated maturity, or in~~ any of the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower foregoing shall be ~~contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any,~~ taken with respect ~~thereto as are required by GAAP and deemed appropriate by~~ to such Borrower and ~~its independent public accountants, PROVIDED, that no Event~~ shall continue un-stayed and in effect for a period of ~~Default pursuant to paragraphs~~ sixty (b60) ~~or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~days; or (g) ~~Such~~ One or more judgments or decrees shall be entered against any Borrower ~~shall discontinue its business~~ involving a liability of One Hundred Thousand and 00/100 Dollars (~~other than in connection with a permitted merger or consolidation of such Borrower~~$100,000.00) or ~~shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent~~ more (to the ~~appointment of or taking possession~~ extent not covered by ~~a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part~~ independent third-party insurance as to which the insurer has been notified of the ~~property~~ potential claim and does not dispute coverage) and all such judgments or ~~assets of such Borrower~~ decrees shall not have been vacated, discharged, stayed or ~~shall commence a case or have an order for relief entered against it under~~ bonded pending appeal within ten (10) days from the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)entry thereof; or (h) IfIf any of the Loan Documents (including this Agreement) (or any provision contained therein) shall be cancelled, ~~within sixty (60) days after~~ terminated, revoked, curtailed or rescinded otherwise than in accordance with the ~~commencement against such Borrower~~ terms thereof or with the express prior written agreement, consent or approval of ~~a case under~~ the ~~federal bankruptcy laws, as now or hereafter constituted~~Lender, or any ~~other applicable federal~~ action at law, suit or ~~state bankruptcy, insolvency~~ in equity or other ~~similar law~~legal proceeding to cancel, ~~such case~~ revoke, curtail or rescind any of the Loan Documents shall ~~have been consented to~~ be commenced by or ~~shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay~~ on behalf of any ~~such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such~~ Borrower or any ~~substantial part~~ of its officers, director or stockholders of any Borrower, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the ~~property of such Borrower such appointment shall not have been vacated~~Loan Documents (including this Agreement) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount~~ the security interest granted by any Borrower to the Lender under Section 3 of this Agreement shall cease for any reason: (i) to create a valid and perfected second priority security interest in and to all of the ~~aggregate equal~~ Collateral pledged thereunder; or (ii) to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall~~ be ~~rendered against such Borrower~~ in full force and ~~if, within thirty (30) days after entry thereof, such judgment shall not have been discharged~~ effect or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged~~be declared null and void; or (j) ~~Such Borrower or any member~~ a material portion of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary property of any ~~such Plan~~ Borrower is damaged by fire or ~~Plans against such Borrower~~ other casualty, or ~~any member of~~ otherwise lost or stolen, the ~~Controlled Group to enforce Sections 515~~ restoration or ~~4219(c)(5) of ERISA; or a condition shall exist by reason~~ replacement cost of which property exceeds, in the ~~PBGC~~ aggregate, the amount of insurance proceeds readily available for such restoration or replacement, and such loss would ~~be entitled to obtain~~ have a ~~decree adjudicating that any~~ material adverse effect upon such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower; or (k) ~~Such Borrower~~ any Event of Default (as defined in the Senior Loan and Security Agreement) shall ~~cease to be an investment management company (~~exist and remains un-waived or ~~a Portfolio thereof) registered~~ uncured under the ~~Investment Company Act~~Senior Loan and Security Agreement if, or as a result of such ~~Borrower's registration under~~ Event of Default (as defined in the ~~Investment Company Act~~Senior Loan and Security Agreement), ~~or that~~ the Senior Lender is entitled to cause the Senior Credit Facility to become due prior to its stated date of maturity; or (l) the occurrence of any ~~Borrower Agent of such Borrower, shall lapse or be suspended~~Material Adverse Change; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the ~~Commitments as~~ Lender may, by notice in writing to ~~such defaulting Borrower~~ the Borrowers, declare all of the Obligations to be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Borrowers; provided, ~~and/or (B~~however, that in the event of any Event of Default specified in subsection 8.1(e) ~~terminate the Commitments as to such defaulting Borrower~~or 8.1(f), ~~whereupon the Commitments~~ all of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ Obligations shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 1 contract

Samples: Bridge Loan and Security Agreement (Hitchcock Jeremy P.)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower shall fail to pay (i) ~~shall default in the payment of~~ when due and payable any principal of ~~any Loan,~~ or interest ~~accrued thereon or fee due hereunder after~~ on the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise,~~ Revolving Credit Loans or (ii) ~~shall default in the payment of~~ any other ~~amount~~ sum due ~~hereunder after~~ under any of the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loan Documents within five (5) ~~Banking Days~~ days following written demand for payment of the same; (b) the Borrower or the Guarantor shall fail to perform any term, covenant or agreement contained in 8 or 9 (other than the covenant set forth in 9(a) hereof); (c) the Borrower shall fail to perform the covenant set forth in 9(a) hereof and such failure shall continue for thirty (30) days after the Bank has given written notice ~~thereof shall have been given~~ of such failure to ~~such~~ the Borrower ~~by the Operations Agent~~pursuant to 18 hereof; or (d) ~~Such~~ the Borrower or the Guarantor or any Additional Guarantor shall ~~default~~ fail to perform any other term, covenant or agreement contained in the ~~performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans,~~ Loan Documents and such ~~default~~ failure shall continue for ~~more than~~ thirty (30) days after the Bank has given written notice of such failure to the Borrower; provided, that if any such failure is of a nature that it cannot be corrected within such thirty (30) day period but is capable of ~~grace~~being corrected within an additional twenty (20) day period, ~~if any, specified therein and~~ such failure shall not ~~have been waived pursuant thereto~~constitute an Event of Default hereunder so long as (i) the Borrower or the Guarantor or such Additional Guarantor, as applicable, institutes reasonable curative action within such initial period and diligently pursues such action to completion and (ii) such failure shall be fully cured within such additional twenty (20) day period; or (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrower or ~~statement made~~ the Guarantor or ~~deemed made by such Borrower~~ any Additional Guarantor in ~~this Agreement~~ any of the Loan Documents or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made; or (f) ~~Except as otherwise provided~~ the Borrower or the Guarantor or any Additional Guarantor shall be in ~~this Section 10.01~~default beyond the expiration of any applicable grace period under any environmental, ~~such Borrower shall default~~ financial or payment covenant set forth in any ~~payment due on~~ agreement or agreements evidencing Indebtedness ~~for borrowed money~~ owing to the Bank or any affiliates of the ~~deferred purchase price of property, the aggregate outstanding principal amount of which is~~ Bank or other Indebtedness in excess of ~~five percent (5%) of~~ $1,000,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ subject to any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, ~~if any~~(h) the Borrower, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ the ~~holder~~ Guarantor, any Additional Guarantor or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or their respective Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawproceeding, such case ~~shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order~~ or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall is not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, dismissed within thirty (30) days ~~after entry~~ following the commencement thereof, ~~such judgment~~ or (v) shall ~~not have been discharged~~ be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or ~~execution thereof stayed pending appeal,~~ the Guarantor or ~~if, within thirty (30) days after the expiration of~~ any ~~such stay, such judgment~~ Additional Guarantor shall ~~not have been discharged~~be unable to pay its debts as they mature; or (j) ~~Such~~ there shall remain undischarged for more than ten (10) days any final (beyond any applicable appeal period) judgment or execution action against the Borrower or the Guarantor or any ~~member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay~~ Additional Guarantor (not covered by insurance reasonably satisfactory to the ~~PBGC~~ Agent) that, together with other outstanding claims (not covered by insurance reasonably satisfactory to the Agent) and execution actions against the Borrower or ~~to a Plan under Title IV of ERISA~~the Guarantor or such Additional Guarantor exceeds $1,000,000 in the aggregate; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) ~~Such Borrower~~ the Guarantor shall cease to be ~~an investment management company (or a Portfolio thereof) registered under~~ the ~~Investment Company Act, or such Borrower's registration under~~ general partner of the ~~Investment Company Act, or that of~~ Borrower at any ~~Borrower Agent of such Borrower, shall lapse or be suspended;~~ time: then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting Borrower (A)~~ the Borrower, declare all amounts owing with respect to this Agreement, the ~~principal of~~ Revolving Credit Notes and ~~accrued interest in respect of such defaulting Borrower's Loans~~ the other Loan Documents to be be, andthey shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such Borrower~~the Borrower and the Guarantor; provided that in the event of any Event of Default specified in 12.1(h) or 12.1(i), ~~and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ all suchamounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks ~~to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and~~ or the ~~percentages of~~ Agent or action by the ~~Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after~~ Banks or the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationAgent.

Appears in 1 contract

Samples: Revolving Credit Agreement (Grove Property Trust)

Events of Default; Acceleration. If any of the following events ~~(each an "EVENT OF DEFAULT")~~ shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of the Loan when due in accordance with the terms of this Agreement and the other Financing Documents; or the Borrower shall fail to pay any interest on any Loan, ~~interest accrued thereon~~ or ~~fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of~~ any other amount ~~due hereunder after the same becomes due and payable~~payable hereunder; or (b) ~~Such~~ any representation or warranty made or deemed made by the Borrower ~~shall default~~ or any other Loan Party herein or in ~~the performance of~~ any other Financing Document or ~~compliance with any term~~ which is contained in ~~Sections 9.01(a)~~ any certificate, document or ~~9.01(b) and~~ financial or other statement furnished by it at any time under or in connection with this Agreement or any such ~~default~~ other Financing Document shall prove to have ~~continued for more than three (3) Banking Days,~~ been incorrect in any material respect on or ~~such Borrower shall default in~~ as of the ~~performance of~~ date made or ~~compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~deemed made; or (c) ~~Such~~ the failure by the Borrower or any other Loan Party to punctually perform, observe, comply with or satisfy any covenant, agreement or condition contained in (i) Section 5 or Section 6 of this Agreement or (ii) Section 4.1, 5.4, 5.5, 5.6(a)-(c) of each of the Security Agreements, which failure is not cured within ten (10) days; or (d) the Borrower or any Subsidiary shall default in the observance or performance of any other agreement contained in this Agreement or ~~compliance with~~ any ~~term contained herein~~ other Financing Document (other than ~~those expressly referred to~~ as provided in paragraphs (a) through (c) of this ~~Section 10.01~~Section), and such default shall ~~not have been remedied within five~~ continue unremedied for a period of thirty (530) ~~Banking Days~~ days after the earlier of (i) the date on which a Responsible Officer of the Borrower first learns of such default or (ii) the date on which written notice thereof shall have been given to ~~such~~ the Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoLender; or (e) ~~Any representation~~the Borrower or any Subsidiary shall fail to pay when due (after any applicable period of grace) any Indebtedness of the Borrower or such Subsidiary (other than (i) Indebtedness comprising the Obligations and (ii) Subordinated Debt), ~~warranty certification~~ which together with all such other due but unpaid Indebtedness, exceeds the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00), or ~~statement made~~ shall fail (after any applicable period of grace) to observe or ~~deemed made by~~ perform or obtain a waiver with respect to any term, covenant or agreement evidencing or securing such ~~Borrower in this Agreement~~ Indebtedness, which, if uncured or in unwaived, permits the acceleration of such Indebtedness, or any ~~certificate, financial statement~~ default or ~~other document delivered pursuant hereto~~ event of default shall ~~prove to~~ have been ~~false or incorrect in~~ declared under any ~~material respect when made~~agreement relating to such Indebtedness; or (f) ~~Except as otherwise provided in this Section 10.01, such~~ the Borrower or any other Loan Party shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or ~~taking possession by~~ similar official of itself or of all or a substantial part of its property, (ii) be generally not paying its debts as such debts become due (other than nonpayment of specific debts because of bona fide disputes), (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the United States Bankruptcy Code, as amended from time to time, (v) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (vi) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code, as amended from time to time or other law, (vii) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (viii) take any corporate action for the purpose of effecting any of the foregoing; or (g) a proceeding or case shall be commenced against the Borrower or any other Loan Party, without the application or consent of the Borrower or such Loan Party, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, ~~receiver~~ receiver, custodian, liquidator or ~~liquidator (~~the like of it or ~~other similar official)~~ of ~~such Borrower~~ all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the ~~property~~ relief of debtors, and such proceeding or ~~assets~~ case shall continue undismissed, or unstayed and in effect, for a period of ~~such Borrower~~ sixty (60) days; or ~~shall commence a case or have~~ an order for relief shall be entered ~~against it~~ in an involuntary case under the ~~federal bankruptcy laws~~United States Bankruptcy Code, as ~~now or hereafter constituted~~amended from time to time, against the Borrower or any other ~~applicable federal~~ Loan Party; or ~~state bankruptcy, insolvency~~ action under the laws of the jurisdiction of incorporation or organization of the Borrower or any other Loan Party similar ~~law, or if~~ to any ~~action~~ of the foregoing shall be taken with respect to ~~dissolve~~ the Borrower or ~~liquidate such Borrower (~~any other ~~than~~ Loan Party and shall continue unstayed and in ~~connection with~~ effect for a ~~permitted merger or consolidation~~ period of ~~such Borrower); or (h) If, within~~ sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacateddays; or (i) ~~A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in~~ the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any ~~member of the~~ Commonly Controlled ~~Group~~ Entity shall fail to pay when due an any amount ~~or amounts aggregating in excess of $500,000 which~~ that it ~~is obligated~~ shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA~~; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities~~ , unless (A) such liability is being contested in ~~excess of $500,000 shall be filed under Title IV of ERISA~~ good faith by ~~such~~ appropriate proceedings, the Borrower or ~~any member of~~ such Commonly Controlled Entity, as the ~~Controlled Group~~case may be, ~~any plan administrator~~ has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or ~~any combination of the foregoing~~(B) which would not have a Material Adverse Effect; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or ~~Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA~~Plans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; ~~or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5~~or (i) ~~of ERISA, with respect to,~~ one or more ~~Multiemployer Plans which could cause such~~ judgments or decrees shall be entered against the Borrower or ~~one~~ any of its Subsidiaries involving individually a liability of Two Hundred and Fifty Thousand and 00/100 Dollars ($250,000.00) (not paid or ~~more members~~ fully covered by insurance) or in the aggregate a liability (not paid or fully covered by insurance) of Five Hundred Thousand and 00/100 Dollars ($500,000.00) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the ~~Controlled Group~~ entry thereof; or (j) service of any process upon the Lender, seeking to ~~incur a current payment obligation~~ attach by Lien, levy, mesne, trustee or other process, any funds in excess of Five Hundred Thousand and 00/100 Dollars ($~~500,000~~500,000.00)of the Borrower or any of its Subsidiaries on deposit with, or in possession or control of the Lender; or (k) ~~Such~~ if any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke, curtail or rescind any of the Financing Documents shall be commenced by or on behalf of the Borrower or any of its officers, director or stockholders, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or (l) any of the Security Documents shall, at any time after their execution and delivery for any reason, cease to ~~be an investment management company~~ create a valid and perfected first priority security interest in and to all of the Collateral pledged or granted thereunder; or (m) a material portion of the property of the Borrower and its Subsidiaries (whether or ~~a Portfolio thereof~~not Collateral) ~~registered under the Investment Company Act~~is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds, in the aggregate, the amount of insurance proceeds readily available for such ~~Borrower's registration under~~ restoration or replacement, and such loss would have a Material Adverse Effect; or (n) any default shall exist and remains unwaived or uncured with respect to any of the ~~Investment Company Act~~Subordinated Debt if, ~~or that of any Borrower Agent~~ as a result of such ~~Borrower~~default, ~~shall lapse or~~ any holder of the Subordinated Debt, is entitled to cause any such Subordinated Debt to become due prior to its stated date of maturity; or (o) any of the subordination provisions contained in any of the Subordination Agreements ceases to be ~~suspended~~enforceable in accordance with its terms; then, and in any such event, ~~and at any time thereafter~~so long as the same may be continuing, ~~if any Event of Default shall then be continuing~~ the Lender may, by notice in writing to the Borrower, declare all amounts owing with respect to ~~such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~this Agreement, the ~~Commitments as~~ Notes and the other Financing Documents to ~~such defaulting Borrower~~ be, and they shall thereupon ~~automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~forthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in subsection 7.1(f) or subsection 7.1(g), all such ~~Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower~~ amounts shall ~~forthwith terminate~~ become immediately due and payable automatically and without any ~~other~~ requirement of notice ~~of any kind and~~ from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.

Appears in 1 contract

Samples: Credit Agreement (Cubist Pharmaceuticals Inc)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following events of default (~~each~~ each, an "~~EVENT OF DEFAULT~~event of default") shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) ~~Such Borrower (i) shall~~ failure by the Company to pay when due any amount required to be paid under this Participation Agreement or the Company Note, which failure causes a default in the payment when due of ~~principal~~ the interest on any of the Bonds and continuance of such default for five Business Days; (b) failure by the Company to pay when due any ~~Loan~~amount required to be paid under this Participation Agreement or the Company Note, ~~interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall~~ which failure causes a default in the payment when due of ~~any other amount due hereunder after~~ the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such ~~Borrower~~ failure by the Company shall ~~default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~continue for five Business Days; or (c) ~~Such Borrower shall~~ failure by the Company to pay when due any amount required to be paid under Section 4.11, which failure causes a default in the ~~performance~~ payment when due of any amount payable pursuant to Article V of the Indenture; (d) failure on the part of the Company duly to observe or ~~compliance with~~ perform any ~~term~~ other of the covenants or agreements on the part of the Company contained ~~herein~~ in this Participation Agreement (other than ~~those expressly referred~~ failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in ~~this Section 10.01, and such default shall not have been remedied within five (5) Banking Days~~ the Company Note for a period of 90 days after the date on which written notice ~~thereof~~ of such failure, requiring the Company to remedy the same, shall have been given to ~~such Borrower~~ the Company by the ~~Operations Agent; or (d) Such Borrower shall default in~~ Authority or the ~~performance of~~Trustee, ~~or compliance with~~provided, ~~any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~however, ~~and such default shall continue for more than the period of grace~~that, if ~~any~~such failure is such that it cannot be corrected within such 90-day period, ~~specified therein and~~ it shall not ~~have been waived pursuant thereto~~constitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price an Act of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCompany; then, and in any such event, ~~and at any time thereafter~~the Trustee with the consent of Ambac, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written ~~or telephonic (confirmed in writing)~~ request of Ambac or the ~~Majority Banks~~ owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of Ambac shall, by notice in writing to the Company and Ambac and provided that the default has not theretofore been cured, declare the Company Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Company Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Company Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Company Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Company Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such ~~defaulting Borrower~~ declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Ambac Assurance (Aif not in default) ~~declare~~ shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Company Note as described in this Participation Agreement, and ~~accrued interest~~ (ii) the right to rescind any declaration of acceleration, and Ambac Assurance shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Company Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in ~~respect~~ every such case the Company, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Authority and the Trustee shall continue as though no such ~~defaulting Borrower's Loans to be forthwith due and payable, whereupon~~ proceedings had been taken. In the ~~principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice~~ event of any ~~kind~~Act of Bankruptcy, reorganization or liquidation, Ambac Assurance shall have the right to vote on behalf of all ~~of which are hereby expressly waived~~ Bondholders absent a default by ~~such Borrower, and/or (B) terminate~~ Ambac Assurance under the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.

Appears in 1 contract

Samples: Participation Agreement (Central Hudson Gas & Electric Corp)

Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower ~~(i)~~ shall ~~default in the payment of~~ fail to pay any principal of the Loans or any ~~Loan, interest accrued thereon or fee due hereunder after~~ Reimbursement Obligation when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such~~ the Borrower shall ~~default in~~ fail to pay any interest on the ~~performance~~ Loans, any Letter of Credit Fee, the ST Facility Fee, the MT Facility Fee, the Utilization Fee or ~~compliance with~~ other sums due hereunder or under any ~~term contained in Sections 9.01(a)~~ of the other Loan Documents, on or ~~9.01(b)~~ prior to the second day immediately succeeding the day on which the same shall become due and ~~such default shall have continued~~ payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for ~~more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~payment; (c) ~~Such~~ the Borrower or any Subsidiary of the Borrower shall ~~default in the performance of or compliance~~ fail to comply with any ~~term~~ of its covenants contained ~~herein other than those expressly referred~~ in section 5.9, 5.10, 5.12, 5.15 through 5.17, inclusive, section 6 or section 7; (d) the Borrower fails to perform any term, covenant or agreement contained in ~~this Section 10.01, and such default shall not have been remedied within~~ section 5.4 for five (5) ~~Banking Days~~ days after written notice ~~thereof shall have~~ of such failure has been given to ~~such~~ the Borrower by the ~~Operations Agent; or (d) Such~~ Administrative Agent or the Borrower shall ~~default in the performance of~~fail to perform any other term, covenant or ~~compliance with, any material term~~ agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this section 10) for thirty (30) days after written ~~agreement with~~ notice of such failure has been given to the ~~Operations~~ Borrower by the Administrative Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace~~or, if ~~any~~such performance is not possible within such thirty (30) day period, ~~specified therein~~ the Borrower shall fail to undertake such performance within such thirty (30) day period and ~~shall not have been waived pursuant thereto; or~~thereafter to diligently and in good faith pursue the completion of such performance; (e) ~~Any representation,~~ any representation or warranty ~~certification~~ of the Borrower or ~~statement made or deemed made by such Borrower~~ any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any ~~certificate, financial statement or~~ other document or instrument delivered pursuant ~~hereto~~ to or in connection with this Credit Agreement shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (f) ~~Except as otherwise provided in this Section 10.01~~the Borrower or any of its Subsidiaries shall (i) fail to pay at maturity, ~~such Borrower shall default in~~ or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, ~~if any~~any obligation for borrowed money in an aggregate amount equal to or greater than 2% of the Consolidated Capitalization of the Borrower or (ii) fail to observe or perform any term, ~~applicable thereto and shall not have been waived pursuant thereto and shall permit~~ covenant or agreement relating to or contained in any instrument or agreement evidencing or securing any obligation for borrowed money which results in the ~~holder~~ acceleration (whether by declaration or automatically) of such ~~Indebtedness~~ indebtedness in an aggregate amount equal to ~~declare such Indebtedness due and payable before its stated maturity,~~ or in greater than 2% of the ~~performance~~ Consolidated Capitalization of ~~or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orBorrower; (g) ~~Such~~ the Borrower ~~shall discontinue~~ or any of its ~~business (other than in connection with a permitted merger or consolidation of such Borrower) or~~ Material Subsidiaries shall make an assignment for the benefit of creditors, or ~~shall~~ admit in writing its inability to pay or generally fail ~~generally~~ to pay its debts as ~~such debts~~ they mature or become due, or shall petition or apply for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such~~ the Borrower or any of its Material Subsidiaries or of any substantial part of the ~~property or~~ assets of ~~such~~ the Borrower or any of its Material Subsidiaries or shall commence a any case or ~~have an~~ other proceeding relating to the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of its Material Subsidiaries and the Borrower or any of its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Borrower or any Material Subsidiary of the Borrower in an involuntary case under ~~the~~ federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment ~~which~~against the Borrower or any of its Subsidiaries that, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged and not covered by insurance, against such ~~Borrower,~~ Person(s) exceeds ~~an amount~~ in the aggregate ~~equal to~~ five ~~percent~~ (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member percent of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member Consolidated Net Worth 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower~~'s registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended~~; then, and in any such event, ~~and at any time thereafter, if any Event of Default shall then~~ so long as the same may be ~~continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above~~continuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Administrative Agent may, and upon the ~~written or telephonic (confirmed in writing)~~ request of the Majority Banks shall, by ~~written~~ notice in writing to ~~such defaulting~~ the Borrower ~~(A)~~ declare all amounts owing with respect to this Credit Agreement, the ~~principal of~~ Notes, the other Loan Documents and ~~accrued interest in respect of such defaulting Borrower's Loans~~ all Reimbursement Obligations to be be, and they shall thereupon forthwith ~~due and payable~~become, ~~whereupon the principal of and accrued interest in respect of such Loans shall become forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in section 10(g) or section 10(h), all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. If any one or more of the Events of Default specified in section 10(g) or section 10(h) shall occur, ~~and/or (B)~~ any unused portion of the credit hereunder shall forthwith terminate ~~the Commitments as to such defaulting Borrower, whereupon the Commitments~~ and each of the Banks shall be relieved of all obligations to make ~~Committed Credit~~ Loans hereunder and the Administrative Agent shall be relieved of all further obligations to ~~such defaulting Borrower shall forthwith terminate without~~ issue, extend or renew Letters of Credit. If any other Event of Default shall have occurred and be continuing, the Administrative Agent, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. If any such notice is given to the Borrower, the Administrative Agent will forthwith furnish a copy thereof to each of the Banks. No termination of the credit hereunder shall relieve the Borrower of any ~~kind and the percentages~~ of the ~~Commitment Fee and~~ Obligations or any of its existing obligations to the Banks arising under other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationagreements or instruments.

Appears in 1 contract

Samples: Revolving Credit Agreement (Telephone & Data Systems Inc /De/)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ If the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any ~~other amount due hereunder after~~ interest on any of the Revolving Notes, the Line of Credit Notes or the Swing Line Note when the same becomes due and ~~payable~~payable and any such default continues for ten (10) Business Days; or (b) ~~Such~~ If the Borrower shall default in the payment of any principal of any of the Revolving Notes, the Line of Credit Notes or the Swing Line Note when the same becomes due and payable and any such default continues for ten (10) Business Days; or (c) If the Borrower shall breach or default in the performance or observance of any of the provisions of Sections 6.1, 6.6, 6.7, 6.8, 6.9, 6.10 or 6.11 and such breach or default is not cured within thirty (30) days after the Agent has given written notice of such breach or default to the Borrower; or (d) If the Borrower shall default in the performance of or compliance with any ~~term~~ covenant, obligation or provision contained in ~~Sections 9.01(a~~this Loan Agreement (other than those referred to above in this Section 7), and any such default shall not have been remedied (i) ~~or 9.01(b~~within thirty (30) ~~and~~ days after the date written notice of such default shall have ~~continued for more than three (3) Banking Days~~been delivered to the Borrower, or (ii) if such default cannot be cured within such thirty (30) day period, within such longer period of time as may be necessary to effect such cure, but in any event within sixty (60) days after written notice of such default shall have been delivered to the Borrower, provided that the Borrower commences to cure the particular default within such thirty (30) day period and prosecutes the cure to completion with due diligence within sixty (60) days after written notice of such default shall have been delivered to the Borrower; or (e) If any material representation or warranty made in writing by or on behalf of the Borrower herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall have been materially false or misleading or incorrect when made and the Borrower shall have known or should have known of the falsity, misleading nature of or incorrectness of such repre- sentation or warranty when it was made, and the Borrower fails to cause such representation or warranty to cease to be materially false, misleading or incorrect within thirty (30) days after writ- ten notice of such materially false, misleading or incorrect rep- resentation or warranty shall have been delivered to the Borrower; or (f) If the Borrower shall default (as principal or guarantor or other surety or otherwise) in the payment of any principal of or premium, if any, or interest on any other Indebtedness in respect of borrowed money or any Capital Lease or in the deferred purchase price of property which, at the time of the Borrower's default in the payment thereof, has an unpaid balance in excess of One Million Dollars ($1,000,000.00), or if the Borrower defaults in the performance of or compliance with any term ~~contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ of any documents evidencing Indebtedness of the Borrower or ~~9.04; or (c) Such Borrower shall default in the performance~~ of ~~or compliance with~~ any ~~term contained herein other than those expressly referred to in this Section 10.01~~agreement relat- ing thereto, and ~~such default shall not have been remedied within five~~ (5i) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~; or~~ , (eii) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such the Borrower shall ~~default in~~ not be contesting the amount or validity of, or its liability for, any ~~payment due on Indebtedness for borrowed money~~ such Indebt- edness or ~~the~~ Capital Lease or deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation property in good faith and by appropriate proceedings promptly initiated and diligently conducted ~~and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required~~ by ~~GAAP and deemed appropriate by such~~ the Borrower and ~~its independent public accountants~~in which all actions against the property of the Borrower have been stayed, ~~PROVIDED, that no Event of Default pursuant to paragraphs~~ and (biii) ~~or (i) of this Section 10.01 shall have occurred and be continuing as a result~~ the holder of such ~~claim having been asserted in respect~~ Indebtedness has an immediate right under applicable law to accelerate the maturity of such ~~Indebtedness~~Indebtedness by virtue of such default and expiration of the applicable grace period; or (g) ~~Such~~ If the Borrower shall discontinue its business ~~(other than in connection with a permitted merger or consolidation of such Borrower)~~ or shall make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of ~~such Borrower or~~ any substantial part of its property, or if the ~~property~~ Borrower shall take any action in furtherance of its dissolution or ~~assets of such~~ liquidation; or (h) If the Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable ~~federal or state~~ bankruptcy, insolvency or other similar law, or ~~if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If~~if, within ~~sixty~~ thirty (6030) days after the commencement against ~~such~~ the Borrower of a case under the ~~federal bankruptcy laws~~Bankruptcy Code, as now or hereafter constituted, or any other applicable ~~federal or state~~ bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of ~~such~~ the Borrower shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of ~~such Borrower or~~ any substantial part of the property of the Borrower, such ~~Borrower such appointment~~ appoint- ment shall not have been vacated; or (i) A If a final uninsured judgment which, ~~together~~ with other ~~outstanding~~ out- standing final judgments against ~~such Borrower,~~ the Borrower exceeds an ~~amount in the~~ aggregate ~~equal to five percent~~ of One Million Dollars (~~5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $1,000,000.00), shall be rendered against ~~such~~ the Borrower and (i) if, ~~within thirty (30) days after entry thereof~~prior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, ~~within thirty (30) days~~ after the expiration of any such stay, such judgment shall not have been ~~discharged~~dis- charged, or (ii) the Borrower shall not have established adequate reserves on its books in respect of such final uninsurable judgment or judgments; or (j) ~~Such~~ If the Borrower ~~or any member~~ experiences a Change in Control without the prior written consent of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; orBanks; (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in upon the ~~case~~ occurrence of any Event of Default ~~specified~~ described in ~~paragraphs (g) and~~ clause (h) ~~above~~of this Section 7 with respect to the Borrower, the ~~Commitments as to such defaulting Borrower~~ Revolving Loan Commitment of each Bank shall ~~thereupon automatically be terminated~~ terminate and the respective unpaid principal balances of ~~and~~ the Revolving Notes to- gether with all accrued interest on thereon and all other Obligations of the ~~Loans~~ Borrower to the Banks shall automatically become immediately due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, ~~and/or~~ or (Bii) upon the occurrence of any other Event of Default referred to in this Section 7, the Agent, with the written consent of the Requisite Banks at any time at their option, shall by written notice to the Borrower, terminate the Banks' respective Revolving Loan Commitments as and declare the respective unpaid prin- cipal balances of the Revolving Notes together with all accrued interest thereon and all other Obligations of the Borrower to ~~such defaulting Borrower, whereupon the Commitments of~~ the Banks to be due and payable in full to the Banks, without present- ment, demand, protest or other requirements of any kind, all of which are hereby waived by the Borrower. Upon the occurrence of any Event of Default, the Banks shall have no obligation to make ~~Committed Credit~~ additional Revolving Loans ~~hereunder~~ to ~~such defaulting~~ the Borrower, PNC shall have no obligation to issue or extend the expiration date of any Letters of Credit, and the Borrower shall ~~forthwith terminate without any other notice~~ immediately deposit with the Agent an amount in "good and collected" funds equal to the then-existing Letter of Credit Usage to secure all Obligations of the Borrower in respect of all outstanding Letters of Credit. (i) the termination, cancellation or release of any ~~kind and~~ Loan Instru- ment, (ii) the ~~percentages~~ decrease in the interest rate(s) borne by the Revolving Loans, other than decreases in the interest rate(s) borne by the Revolving Loans by virtue of any decreases in the Federal Funds Rate or the Adjusted LIBOR Rate, in each case as expressly contemplated herein, (iii) the decrease in the Letter of Credit Fee Percentage, (iv) any extension of the ~~Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the~~ stated maturity date of ~~termination shall be reallocated among~~ the ~~remaining Borrowers PRO RATA~~ Revolving Loan Commitments pursuant to Section 2.1B hereof, (v) any extension of the due dates of any installments of accrued interest on the ~~basis~~ Revolving Loans, (vi) any reduction in the Pro Rata Share of any Bank except as expressly contemplated or permitted in this Loan Agreement, (vii) any change in the provision that Banks holding more than 60% of the ~~percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~Total Utilization of Revolving Loan Commit- ments constitute the Requisite Banks, ~~as in effect at~~ (viii) any amendment, modi- fication or termination of the ~~time~~ Guaranty Agreement and/or any re- lease of ~~such termination~~Wabash Steel Corporation from any of its obligations thereunder, or (ix) any amendment of the provisions of this paragraph.

Appears in 1 contract

Samples: Loan Agreement (Steel Technologies Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Borrowers shall ~~default in the payment of~~ fail to pay any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Loans when the same ~~becomes~~ shall become due and payable, whether at the stated date of maturity or ~~by acceleration~~ any accelerated date of maturity or ~~otherwise, or (ii) shall default in the payment of~~ at any other ~~amount due hereunder after the same becomes due and payable; or~~date fixed for payment; (b) ~~Such Borrower~~ if the Borrowers shall ~~default in~~ fail to pay any interest, letter of credit fees, the ~~performance of~~ Amendment Fee or ~~compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in~~ Commitment Fees on the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loans within five (5) ~~Banking~~ Business Days after the same shall become due and payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (c) if the Borrowers shall fail to comply with their covenants contained in Section 5 (excepting Sections 5.2, 5.4, and 5.9,) or Section 6 hereof; (d) if the Borrowers shall fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b), and (c) above) within 45 business days after written notice ~~thereof shall have~~ of such failure has been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank; (e) ~~Any representation,~~ if any representation or warranty ~~certification or statement made or deemed made by such Borrower~~ contained in this Agreement or in any ~~certificate, financial statement~~ document or ~~other document~~ instrument delivered pursuant ~~hereto~~ to or in connection with this Agreement shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (f) ~~Except as otherwise provided in this Section 10.01~~if any Borrower or any Subsidiary shall fail to pay at maturity, ~~such Borrower shall default in~~ or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, any and all obligations for borrowed money in an aggregate amount greater than $1,000,000 (excluding, however, any agreement relating to any pledge of, or restriction on the pledge or disposition of, margin stock, as defined in Regulation U of the Board of Governors of the Federal Reserve System, owned by any Borrower), or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money in an aggregate amount greater than $1,000,000 for such period of time as would, or would have permitted (assuming the giving of appropriate notice if ~~any, applicable thereto and shall not have been waived pursuant thereto and shall permit~~ required) the holder ~~of such Indebtedness to declare such Indebtedness due and payable before its stated maturity,~~ or ~~in the performance of or compliance with any term of any evidence of such Indebtedness~~ holders thereof or of any ~~mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than~~ obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessmaturity thereof; or (g) ~~Such~~ if any Borrower ~~shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make~~ makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become ~~due~~due (excluding, however, any agreement relating to any pledge of, or ~~shall apply~~ restriction on the pledge or disposition of, margin stock, as defined in Regulation U of the Board of Governors of the Federal Reserve System, owned by any Borrower), or petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such Borrower~~ any of the Borrowers or of any substantial part of the ~~property or~~ assets of ~~such Borrower~~ any of the Borrowers or ~~shall commence a~~ their Subsidiaries or commences any case or ~~have an~~ other proceeding relating to any of the Borrowers or their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against any of the Borrowers or their Subsidiaries and any of the Borrowers or their Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrowers or their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of any Borrower or any Subsidiary in an involuntary case under ~~the federal~~ Federal bankruptcy ~~laws,~~ laws as now or hereafter constituted, and such decree or ~~any other applicable federal~~ order remains in effect for more than 30 days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedconsecutive; or (i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against any Borrower or any Subsidiary which, ~~together~~ with other outstanding final ~~judgments~~ judgments, undischarged, against ~~such Borrower,~~ the Borrowers exceeds ~~an amount~~ in the aggregate ~~equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days~~ $1,000,000 after ~~entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of~~ taking into account any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedinsurance coverage; then, ~~and~~ the Bank may by notice in ~~any such event, and at any time thereafter, if any Event of Default shall then be continuing~~ writing to the Borrowers declare all amounts owing with respect to ~~such defaulting Borrower~~this Agreement and the Note to be, ~~(i) in the case of any Event of Default specified in paragraphs (g)~~ and ~~(h) above, the Commitments as to such defaulting Borrower~~ they shall thereupon ~~automatically be terminated~~ forthwith mature and ~~the principal of and accrued interest on the Loans shall automatically become due and payable without presentment~~become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, that in the event of any Event of Default specified in Sections 9(g) or 9(h) hereof, all such ~~Borrower~~amounts shall become immediately due and payable automatically and without any requirement of notice from the Bank. Upon demand by the Bank after the occurrence of any Event of Default, ~~and/or (B) terminate~~ the ~~Commitments~~ Borrowers shall immediately provide to the Bank cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters of Credit outstanding, to be held by the Bank as ~~to such defaulting Borrower, whereupon~~ collateral security for the ~~Commitments~~ Obligations. In case any one or more of the ~~Banks~~ Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans pursuant to ~~make Committed Credit~~ the foregoing, the Bank, if owed any amount with respect to the Loans may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the obligations of the Borrowers to the Bank hereunder are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to ~~such defaulting Borrower shall forthwith terminate without~~ enforce the payment thereof or any other ~~notice~~ legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holders of the Note is intended to be exclusive of any ~~kind~~ other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Revolving Credit Agreement (TRC Companies Inc /De/)

Events of Default; Acceleration. If any of the following events (~~each~~ individually, an "~~EVENT OF DEFAULT~~Event of Default" and, collectively, "Events of Default", or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, individually, a "Default" and collectively, "Defaults") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i) shall default in the payment of principal of~~ if any ~~Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise~~amount owing under this Note is not paid when due, or ~~(ii) shall default in~~ the ~~payment of any other amount due hereunder after the same becomes due and payable; or (b) Such~~ Borrower shall default in the performance of or compliance with any other term or provision contained in ~~Sections 9.01(a)~~ this Note or ~~9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in~~ any of the ~~performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or~~Other Documents; (cb) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, if any material ~~term contained~~ representation or warranty of the Borrower in any ~~other written agreement with~~ of the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto Other Documents shall prove to have been false ~~or incorrect~~ in any material respect upon the date when made~~; or~~; (fc) ~~Except as otherwise provided in this Section 10.01, such~~ if the Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or ~~shall fail~~ admits in writing its inability to pay or generally fails to pay its debts as ~~such debts~~ they mature or become due, or ~~shall apply~~ petitions or applies for ~~or consent to~~ the appointment of ~~or taking possession by~~ a ~~trustee, receiver or liquidator (~~trustee or other ~~similar official)~~ custodian, liquidator or receiver of ~~such~~ the Borrower or of any substantial part of the ~~property or~~ assets of ~~such~~ the Borrower or ~~shall commence a~~ commences any case or ~~have an~~ other proceeding relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing; or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower; (d) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered ~~against it~~ in respect of the Borrower in an involuntary case under ~~the federal~~ Federal bankruptcy ~~laws,~~ laws as now or hereafter ~~constituted~~constituted and such decree or order shall remain in effect for more than sixty (60) days, whether or not consecutive; (e) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment not covered by insurance against the Borrower which, with other outstanding final judgments, undischarged, against the Borrower exceeds in the aggregate FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00); (f) if there shall have occurred after the date hereof, any changes in the assets, liabilities, financial condition, business or operations of the Borrower which, individually or in the aggregate, are materially adverse; (g) if there shall have occurred a default or an event of default under any of the Other Documents after expiration of any applicable ~~federal or state bankruptcy~~notice and cure periods, ~~insolvency or other similar law, or~~ if ~~any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or~~any; (h) Ifif any Other Document shall be canceled, ~~within sixty (60) days after~~ terminated, revoked or rescinded otherwise than in accordance with the ~~commencement against such Borrower~~ express prior written agreement, consent or approval of ~~a case under~~ the ~~federal bankruptcy laws~~Bank; or any action at law, ~~as now~~ suit in equity or ~~hereafter constituted~~other legal proceeding to cancel, revoke or rescind any Other Document shall be commenced by or on behalf of any Person bound thereby, or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other ~~applicable federal~~ governmental or ~~state bankruptcy~~regulatory authority or agency of competent jurisdiction shall make a determination that, ~~insolvency or other similar law, such case shall have been consented to~~ or shall ~~not have been dismissed~~ issue a judgment, order, decree or ~~all orders~~ ruling to the effect that any Other Document or ~~proceedings thereunder affecting~~ any one or more of the ~~operations~~ material covenants, agreements or ~~the business of such Borrower stayed, or if the stay~~ obligations of any ~~such order~~ Person or ~~proceeding shall thereafter be set aside~~Persons under any Other Document are illegal, invalid or ~~if within sixty (60) days after~~ unenforceable in accordance with the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedterms thereof; or (i) ~~A final judgment which~~if at any time during the term of this Note, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) Borrower shall be ~~rendered against~~ considered in default under any loan extended by General Electric Capital Corporation and General Electric Capital Corporation does not waive any such ~~Borrower~~ default; then, and ~~if, within thirty (30) days after entry thereof,~~ so long as any such ~~judgment~~ Event of Default shall not have been ~~discharged~~ remedied or ~~execution thereof stayed pending appeal, or if, within thirty (30) days after~~ waived in writing by the ~~expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or~~ Bank all amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing owing with respect to ~~such defaulting Borrower~~this Note shall, ~~(i) in~~ at the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both option of the ~~following actions may be taken: the Operations Agent may~~Bank, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith ~~due~~ matured and ~~payable, whereupon the principal of and accrued interest in respect of such Loans shall~~ become ~~forthwith~~ immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and by all guarantors, endorsers, and pledgors with respect hereto; provided, that in the case of any Event of Default specified in Section 7(c) or Section 7(d) above, all such ~~Borrower, and/or (B) terminate~~ amounts owing shall become immediately due and payable automatically and without any requirement of notice from the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ Bank. In case any one or more of the ~~Banks~~ Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Note pursuant to ~~make Committed Credit Loans hereunder~~ the foregoing, the Bank, if owed any amount with respect to the Note may proceed to protect and enforce its rights by suit in equity, action at law and/or performance of any covenant or agreement contained in this Note, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such ~~defaulting Borrower~~ amount shall ~~forthwith terminate without~~ have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other ~~notice~~ legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holder of this Note is intended to be exclusive of any ~~kind~~ other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis~~ cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of ~~the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination~~law.

Appears in 1 contract

Samples: Note (Edac Technologies Corp)

Events of Default; Acceleration. If any of the following conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ the Company shall default in the payment of any principal of or Make Whole Amount, Premium Amount, if any, on any ~~Loan, interest accrued thereon or fee due hereunder after~~ Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) the Company shall default in the payment of any ~~other~~ interest on any Note or any amount due ~~hereunder~~ and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or (bc) ~~Such Borrower~~ the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in Section 7(f), any of Sections ~~9.01(a) or 9.01(b) and such default shall have continued for more~~ 10.1 through 10.8 (other than ~~three (3) Banking Days~~Section 10.8(c)), inclusive, or ~~such Borrower~~ the Dedicated Funds are not used to repay Indebtedness as specified in the pro forma calculations set forth in the definition of Consolidated Pro Forma Debt Service or the definition of Maximum Consolidated Pro Forma Debt Service, as the case may be; or (d) the Company, either General Partner, Northwestern, the Public Partnership or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ this Agreement or ~~9.04; or (c) Such Borrower shall default in the performance of or compliance with~~ any ~~term contained herein~~ other ~~than those expressly referred to in this Section 10.01,~~ Operative Agreement and such default shall not have been remedied within ~~five (5) Banking~~ 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent~~Company from the Trustee; or (de) ~~Such Borrower~~ any material representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or (i) the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default (after receiving notice, if any, and/or the expiration of any applicable grace period) in the ~~performance of~~payment of any amount of principal of or premium or interest on the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof); or any event shall occur or condition shall exist in respect of the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities, or ~~compliance with~~of any mortgage, ~~any material term contained in any~~ indenture or other ~~written~~ agreement ~~with~~ relating to the ~~Operations Agent~~ Bank Credit Facilities or any facility extending, renewing or refinancing the Bank ~~pertaining~~ Credit Facilities the effect of which is to ~~this Agreement~~ cause such Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof), to become due before its stated maturity or before its regularly scheduled dates of payment or to permit the holders thereof to cause the Company or any Restricted Subsidiary to repurchase or repay such ~~Borrower's Loans~~Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof), and such ~~default~~ default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto~~; or~~;] (eii) ~~Any representation, warranty certification~~ the Company or ~~statement made~~ any Restricted Subsidiary (as principal or ~~deemed made by such Borrower in this Agreement or in any certificate, financial statement~~ guarantor or other ~~document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f~~surety) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ shall default ~~in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent~~ (~~5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace~~after receiving notice, if any, and/or the expiration of any applicable ~~thereto~~ grace period) in the payment of any amount of principal of or premium or interest on any Indebtedness in an amount at least equal to $10,000,000 [(other than the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities and the Notes)]; or any event shall ~~not have been waived pursuant thereto and~~ occur or condition shall ~~permit the holder~~ exist in respect of such other Indebtedness ~~to declare such Indebtedness due and payable before its stated maturity,~~ which is outstanding in a principal amount of at least $10,000,000 or ~~in the performance of or compliance with any term of~~ under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating ~~thereto~~to such other Indebtedness, ~~and any~~ the effect of which is to cause such ~~default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such~~ other Indebtedness to ~~declare such Indebtedness~~ become due ~~and payable~~ before its stated ~~maturity, unless such Borrower shall be contesting such payment~~ maturity or ~~obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on~~ before its ~~books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event~~ regularly scheduled dates of ~~Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness~~payment; or (g) ~~Such Borrower shall discontinue~~ filing by or on the behalf of the Company or the Managing General Partner of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its ~~business~~ debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("Bankruptcy Law"), or any action by the Company or the Managing General Partner, or consent or acquiescence to, the appointment of a receiver, trustee or other ~~than in connection with~~ custodian of the Company or the Managing General Partner, or of all or a ~~permitted merger~~ substantial part of its property; or ~~consolidation~~ the making by the Company or the Managing General Partner of ~~such Borrower) or shall make an~~ any assignment for the benefit of creditors, ; or ~~shall fail generally~~ the admission by the Company or the Managing General Partner of the Company in writing of its inability to pay its debts as ~~such debts~~ they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) Iffiling of any involuntary petition against the Company or the Managing General Partner in bankruptcy or seeking reorganization, ~~within sixty (60) days after~~ arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the ~~commencement against such Borrower of a case under the federal bankruptcy laws, as now~~ premises shall have been issued or ~~hereafter constituted,~~ entered therein; or any other similar relief shall be granted under any applicable ~~federal~~ Federal or state ~~bankruptcy~~law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, ~~insolvency~~ liquidator, sequestrator, trustee or other officer having similar ~~law, such case~~ powers over the Company or the Managing General Partner or over all or a part of its property shall have been ~~consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations~~ entered; or the ~~business~~ involuntary appointment of ~~such Borrower stayed~~an interim receiver, trustee or if other custodian of the ~~stay~~ Company or the Managing General Partner or of ~~any such order~~ all or ~~proceeding shall thereafter be set aside,~~ a substantial part of its property; or ~~if within sixty (60) days after~~ the ~~entry~~ issuance of a ~~decree appointing a trustee~~warrant of attachment, ~~receiver~~ execution or ~~liquidator (or other~~ similar ~~official) of such Borrower or~~ process against any substantial part of the property of the Company or the Managing General Partner; and continuance of any such ~~Borrower such appointment shall not have been vacated~~event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or (j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or (k) a final judgment ~~which, together with other outstanding final~~ or judgments ~~against such Borrower, exceeds an amount in the aggregate equal~~ (which is or are non-appealable or which has or have not been stayed pending appeal or as to ~~five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance~~which all rights to appeal have expired or been exhausted) shall be rendered against the Company or any Restricted Subsidiary for the payment of money in excess of $10,000,000 in the aggregate (net of any insurance coverage) and any one of such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ judgments shall not ~~have been~~ be discharged or execution ~~thereof~~ thereon stayed pending ~~appeal, or if,~~ appeal within ~~thirty (30)~~ 60 days after the ~~expiration~~ date due, or, in the event of ~~any~~ such a stay, such judgment shall not ~~have been discharged~~be discharged within 60 days after such stay expires or any action shall be legally taken by a judgment creditor to levy upon the assets or properties of the Company or any Restricted Subsidiary to enforce any such judgment; or (jl) ~~Such Borrower~~ any of the Security Documents shall at any time, for any reason, cease in any material respect to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Security Documents shall be contested by or on behalf of the Company, either General Partner, the Managing General Partner, the Public Partnership, Northwestern or any ~~member~~ Restricted Subsidiary, or the Company, either General Partner, the Managing General Partner, the Public Partnership, Northwestern or any Restricted Subsidiary shall renounce any of the ~~Controlled Group shall fail to pay when due an amount~~ Security Documents or ~~amounts aggregating in excess of $500,000 which~~ deny that it is ~~obligated to pay to~~ bound by the ~~PBGC or to a Plan under Title IV~~ terms of ~~ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or~~ 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Security Documents; or (km) ~~Such Borrower~~ any order, judgment or decree is entered in any proceedings against the Company decreeing a split-up of the Company, and such order, judgment or decree shall ~~cease to~~ not be ~~an investment management company (~~dismissed or ~~a Portfolio~~ execution xxxxxxx stayed pending appeal or review within 60 days after entry thereof~~) registered under the Investment Company Act~~, or ~~such Borrower's registration under~~ in the ~~Investment Company Act, or that of any Borrower Agent~~ event of such ~~Borrower~~a stay, such order, judgment or decree shall ~~lapse or~~ not be ~~suspended; then, and in any~~ dismissed within 60 days after such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.stay expires;

Appears in 1 contract

Samples: Note Agreement (Cornerstone Propane Partners Lp)

Events of Default; Acceleration. If any of the following events (each an ~~"EVENT OF DEFAULT"~~“Event of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ The Borrower ~~(i)~~ shall default in the payment of principal of or interest on the Notes or any ~~Loan, interest accrued thereon or~~ other fee due hereunder ~~after~~ when the same becomes due and payable, whether at maturity or at a date fixed for the payment of any installment or prepayment thereof or by declaration, acceleration or otherwise, or and such default shall continue for a period of three (ii3) ~~shall default in the payment of any other amount due hereunder after the same becomes due and payable~~Business Days (a “Payment Default”); or (b) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained in Section 5 (other than Section 5.10(a)), Article VI or Sections ~~9.01(a)~~ 7.1 or ~~9.01(b) and~~ 7.2 and, to the extent any default is susceptible of remedy or cure, the Borrower has failed to remedy or cure any such default ~~shall have continued for more than three~~ within ten (310) ~~Banking Days, or such~~ days after the occurrence thereof; or (c) The Borrower shall default in the performance of or compliance with any term contained in ~~Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03~~ Section 5.10(a) or ~~9.04~~Section 7.3 and the Borrower has failed to remedy or cure any such default within five (5) Business Days; or (cd) ~~Such~~ The Borrower shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this ~~Section 10.01,~~ Article VIII and such default shall not have been remedied within ~~five~~ thirty (530) ~~Banking Days~~ days after ~~written notice~~ the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall ~~have been given to such Borrower by~~ be deemed an Event of Default as of the ~~Operations Agent~~date of its occurrence; or (de) ~~Such~~ The Borrower or any Subsidiary which is a party to any of the Loan Documents shall default in the performance ~~of,~~ of or compliance ~~with,~~ with any material term contained in the Loan Documents (other than this Agreement) or in the performance of or compliance with any material term contained in any other written agreement with the ~~Operations~~ Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans~~and/or the Lenders, executed in connection therewith and such default shall ~~continue for more than the period of grace, if any, specified therein and shall~~ not have been ~~waived pursuant thereto~~remedied within thirty (30) days after the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall be deemed an Event of Default as of the date of its occurrence; or (ef) Any ~~representation,~~ representation or warranty ~~certification or statement made or deemed~~ made by ~~such~~ the Borrower ~~in this Agreement~~ or any Subsidiary herein or in any ~~certificate, financial statement~~ other Loan Document or ~~other document delivered pursuant hereto~~ shall prove to have been false or incorrect in any material respect when made; or (fg) ~~Except as otherwise provided in this Section 10.01, such~~ The Borrower or any Subsidiary shall default in any payment due on any Indebtedness ~~for~~ in respect of borrowed money where the aggregate principal balance thereof together with interest thereon exceeds $500,000 or any lesser aggregate principal balance where such failure to pay is reasonably likely to have a Material Adverse Effect (other than to the Lenders, as to which Section 8.1(a) shall apply), any Capital Lease or the deferred purchase price of ~~property~~property with a principal balance together with interest thereon, lease balance or purchase price (as the ~~aggregate outstanding principal amount of which is~~ case may be) in excess of ~~five percent (5%)~~ $500,000 outstanding as of the date of such ~~Borrower's Total Assets~~default, and such default shall continue for more than the period of grace, if any, applicable ~~thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity~~thereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant ~~thereto and shall permit the holder of~~ thereto, (except such ~~Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation~~ defaults which are being contested in good faith ~~by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves~~and, if ~~any~~applicable, ~~with respect thereto~~ as ~~are~~ to which adequate reserves have been established on the Borrower’s books to the extent required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessGAAP); or (gh) ~~Such~~ The Borrower or any Subsidiary shall cease to be solvent (as represented in the Solvency Certificate) or shall discontinue its business (~~other than in connection with a~~ except as otherwise permitted ~~merger or consolidation of such Borrower~~hereby) or the Borrower or any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Borrower or such ~~Borrower~~ Subsidiary or any substantial part of the property of the Borrower or ~~assets of~~ such ~~Borrower~~ Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action ~~shall be taken~~ to dissolve or liquidate the Borrower or such ~~Borrower~~ Subsidiary (~~other than in connection with a~~ except as otherwise permitted ~~merger or consolidation of such Borrower~~hereby); or (hi) ~~If, within sixty (60) days after~~ An involuntary proceeding shall be commenced against the ~~commencement against such~~ Borrower ~~of a case~~ or any Subsidiary under the federal bankruptcy laws, as now or hereafter constituted, (which is not dismissed or stayed within 60 days, provided, however, the Borrower may not request any Revolving Credit Loans during such 60 day period) or any other applicable federal or state bankruptcy, insolvency or other similar law, ~~such case shall have been consented to~~ or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree shall be entered appointing a trustee, receiver or liquidator (or other similar official) of ~~such~~ the Borrower or any Subsidiary or any substantial part of the property of the Borrower or such ~~Borrower such appointment shall not have been vacated~~Subsidiary; or (ij) A final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower, exceeds an amount in~~ the ~~aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ Borrower and its Subsidiaries shall be rendered against ~~such~~ the Borrower or any Subsidiary which is reasonably likely to have a Material Adverse Effect and if, within ~~thirty (30)~~ the earlier of 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within ~~thirty (30)~~ 60 days after the expiration of any such stay, such judgment shall not have been discharged~~; or (j) Such~~ , or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Borrower or any ~~member of the Controlled Group~~ Subsidiary shall ~~fail to pay when due an amount or amounts aggregating~~ have been seized in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000satisfaction thereof; or (k) ~~Such~~ If the Borrower ~~shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act~~is enjoined, restrained, or in any material way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business and such ~~Borrower's registration under~~ order is not stayed or revoked within five (5) days; or (l) This Agreement, the ~~Investment Company Act~~Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be cancelled, terminated, revoked, rescinded or declared invalid or unenforceable in whole or in any material respect, otherwise than pursuant to its terms by virtue of the expiration of its term or otherwise than in accordance with the express prior written agreement, consent or approval of the Required Lenders or the Lenders, as the case may be, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind this Agreement, the Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be commenced by or on behalf of the Borrower or any other Person bound thereby or party thereto or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that any one or more of the Loan Documents or any one or more of the material obligations of any ~~Borrower Agent~~ Person or Persons under any one or more of ~~such Borrower~~the Loan Documents are illegal, ~~shall lapse~~ invalid or ~~be suspended~~unenforceable in accordance with the terms thereof; then, and in any such event, and at any time ~~thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in~~ during the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuance thereof, either or both of the following actions may be taken: the ~~Operations~~ Agent ~~may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall,~~ may by written notice to ~~such defaulting Borrower~~ the Borrower, (Ai) declare the principal of and accrued interest in respect of ~~such defaulting Borrower's Loans~~ the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of ~~such Loans~~ the Notes and all amounts due under Section 2.4 and Section 2.5 shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, and/or (Bii) terminate the ~~Commitments as to such defaulting Borrower~~Revolving Credit Facility, whereupon the ~~Commitments of the Banks to make Committed~~ Revolving Credit ~~Loans hereunder to such defaulting Borrower~~ Facility shall forthwith terminate without any other notice of any ~~kind and~~ kind; provided that, in the ~~percentages~~ case of an Event of Default arising by reason of the ~~Commitment Fee and other fees and expenses otherwise payable by~~ occurrence of any event described in Sections 8.1(h) or 8.1(i), both such ~~defaulting Borrower hereunder accruing from and after the date of termination~~ actions shall be ~~reallocated among~~ deemed to have been automatically taken by the ~~remaining Borrowers PRO RATA on the basis~~ Agent and all obligations of the ~~percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~Borrower to the Lenders shall forthwith automatically become due and payable without presentment, ~~as in effect at~~ demand, protest or notice of any kind, all of which are hereby expressly waived by the ~~time~~ Borrower. Without limiting any provision of ~~such termination~~this Agreement or any Loan Documents, a Default or Event of Default hereunder shall also constitute a Default or Event of Default under the Loan Documents.

Appears in 1 contract

Samples: Revolving Credit Loan Agreement (Harvard Bioscience Inc)

Events of Default; Acceleration. ~~If any~~ In case one or more of the following ~~events~~ Events of Default (~~each an "EVENT OF DEFAULT"~~whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall ~~occur with respect to any Borrower~~have occurred and be continuing: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any ~~other amount due hereunder after~~ installment of interest or Liquidated Damages with respect to any of the Notes as and when the same ~~becomes~~ shall become due and payable, and continuance of such default for a period of thirty (30) days; or (b) ~~Such Borrower shall~~ default in the ~~performance~~ payment of the principal of or ~~compliance~~ premium, if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection with any ~~term contained~~ redemption or repurchase, in ~~Sections 9.01(a)~~ each case pursuant to Article 3, by acceleration or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04otherwise; or (c) ~~Such Borrower shall~~ default in the ~~performance of or compliance with any term contained herein other than those expressly referred~~ Company’s obligation to provide a Fundamental Change Notice upon a Fundamental Change as provided in ~~this~~ Section ~~10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent~~3.05; or (d) ~~Such Borrower shall~~ failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Notes or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after the ~~performance of~~date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or ~~compliance with, any material term contained~~ the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent (25%) in ~~any other written agreement~~ aggregate principal amount of the Notes at the time outstanding determined in accordance with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoSection 8.04; or (e) ~~Any representation, warranty certification~~ the Company or ~~statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement~~ the Guarantor shall commence a voluntary case or other ~~document delivered pursuant hereto shall prove~~ proceeding seeking liquidation, reorganization or other relief with respect to ~~have been false~~ its debts under any bankruptcy, insolvency or ~~incorrect~~ 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 ~~material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price~~ substantial part of its property, or shall consent to any such relief or to the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance appointment of or ~~compliance with~~ taking possession by any ~~term of any evidence of~~ such ~~Indebtedness or of any mortgage, indenture~~ official in an involuntary case or other ~~agreement relating thereto~~proceeding commenced against it, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an a general assignment for the benefit of creditors, or shall fail generally to pay its debts as ~~such debts~~ they become due~~, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator~~ ; or (f) an involuntary case or other ~~similar official) of such Borrower~~ proceeding shall be commenced against the Company or the Guarantor seeking liquidation, reorganization or other relief with respect to its debts under any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as law now or hereafter ~~constituted~~in effect or seeking the appointment of a trustee, ~~or any other applicable federal or state bankruptcy~~receiver, ~~insolvency~~ liquidator, custodian or other similar ~~law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business~~ official of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower it or any substantial part of ~~the property of~~ its property, and such ~~Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with~~ involuntary case or other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall ~~be instituted by~~ remain undismissed and unstayed for a ~~fiduciary~~ period of ~~any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5~~ninety (90) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedconsecutive days; then, and in ~~any~~ each and every such ~~event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ case (~~i) in the case of any~~ other than an Event of Default specified in ~~paragraphs~~ Section 6.01(e) or 7.01(f)), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent (g25%) in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Noteholders) specifying the respective Event of Default and stating that it is a “notice of acceleration”, may declare the principal of and premium, if any, on all the Notes and the interest accrued thereon to be due and payable immediately, and upon receipt of such notice the same shall become and shall be immediately due and payable. If an Event of Default specified in Section 6.01(e) or (hf) ~~above~~occurs, the ~~Commitments~~ principal of all the Notes and the interest accrued thereon shall be immediately and automatically due and payable without necessity of further action. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to ~~such defaulting Borrower shall thereupon automatically be terminated~~ pay all matured installments of interest upon all Notes and the principal of and premium, if any, on any and all Notes which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Notes plus 1%, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 7.06, and if any and all defaults under this Indenture, other than the nonpayment of principal of and premium, if any, and accrued interest on ~~the Loans~~ Notes which shall ~~automatically~~ have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and ~~payable without presentment, demand, protest or other notice or formality~~ in every such case the holders of ~~any kind, all of which are hereby expressly waived, and (ii)~~ a majority in ~~the case of any other Event of Default specified above, either or both~~ aggregate principal amount of the ~~following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such ~~defaulting Borrower (A) declare~~ declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. The Company shall notify in writing a Responsible Officer of the ~~principal~~ Trustee, promptly upon becoming aware thereof, of any Event of Default. In case the Trustee shall have proceeded to enforce any right under this Indenture and ~~accrued interest in respect~~ such proceedings shall have been discontinued or abandoned because of such ~~defaulting Borrower's Loans~~ waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be ~~forthwith due~~ restored respectively to their several positions and ~~payable~~rights hereunder, ~~whereupon the principal of~~ and ~~accrued interest in respect of such Loans shall become forthwith due~~ all rights, remedies and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments powers of the ~~Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice~~ Company, the holders of ~~any kind~~ Notes, and the ~~percentages of the Commitment Fee and other fees and expenses otherwise payable by~~ Trustee shall continue as though no such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationproceeding had been taken.

Appears in 1 contract

Samples: Indenture (Airtran Airways Inc)

Events of Default; Acceleration. If any of the following events ~~(each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower:~~occur: ----------------- (a) ~~Such~~ the Borrower or any Subsidiary shall fail to pay when due and payable any principal of the Loans when the same becomes due; (b) the Borrower shall fail to pay interest on the Loans or any other sum (other than principal) due under any of the Loan Documents within five (5) Business Days after the date on which the same shall have first become due and payable; (c) the Borrower shall fail to perform any term, covenant or agreement contained in (S)(S)3, 7.1(c), 7.1(d), or 7.2; (d) the Borrower or any Subsidiary shall fail to perform any other term, covenant or agreement contained in the Loan Documents within thirty (30) days after SingTel NA has given written notice of such failure to the Borrower; (e) the Borrower shall fail to perform any covenant or agreement contained in that certain Series G Convertible Stock Purchase Agreement dated as of the date hereof between the Borrower and the Purchaser named therein (the "Stock Purchase Agreement") within thirty (30) days after SingTel NA has given ------ -------- --------- written notice of such failure to the Borrower; (f) any representation or warranty of the Borrower or any of its Subsidiaries in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (g) any representation or warranty of the Borrower in the Stock Purchase Agreement shall have been false or misleading in any material respect at the time made, and the same is not cured within (30) days after SingTel NA has given written notice thereof to the Borrower; (h) the Borrower or any of its Subsidiaries shall be in default (after any applicable period of grace or cure period) under the Loan Agreement (as such term is defined in the Stock Purchase Agreement); (i) any of the Loan Documents shall ~~default~~ cease to be in full force and effect; (I) the ~~payment of principal of~~ Borrower or any ~~Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii)~~ Subsidiary shall default in the payment of any ~~other amount due hereunder after the same becomes~~ principal of indebtedness in respect of borrowed money when due and ~~payable; or~~ payable after expiration of any grace period applicable thereto, or (bII) ~~Such~~ any indebtedness in respect of borrowed money of the Borrower ~~shall default in the performance of~~ or ~~compliance with~~ any ~~term contained in Sections 9.01(a) or 9.01(b) and such default~~ Subsidiary shall have ~~continued for more than three (3) Banking Days,~~ become due and payable prior to the date upon which it would otherwise have become due and payable as a result of default by the Borrower or such ~~Borrower shall default in~~ Subsidiary and the ~~performance~~ aggregate principal amount of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly all indebtedness referred to in ~~this Section 10.01~~clauses (I) and (II) is in excess of One Million Dollars ($1,000,000), ~~and~~ without such ~~default shall not have~~ indebtedness having been ~~remedied~~ discharged or such acceleration having been rescinded or annulled within ~~five (5) Banking Days~~ 30 days after written notice ~~thereof~~ shall have been given to ~~such~~ the Borrower by ~~the Operations Agent; or~~SingTel NA specifying such default or acceleration and requiring such indebtedness to be discharged or such acceleration to be rescinded or annulled; (dk) ~~Such~~ the Borrower ~~shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent~~ or any ~~Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period~~ of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or ~~if any action shall be taken to dissolve~~ proceeding, such case or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If,~~ proceeding is not dismissed within sixty (60) days ~~after~~ following the commencement ~~against such Borrower~~ thereof, or (v) shall be the subject of a an order for relief in an involuntary case under ~~the~~ federal bankruptcy ~~laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar~~ law~~, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting~~ ; (l) the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any ~~substantial part~~ of ~~the property of such Borrower such appointment~~ its Subsidiaries shall ~~not have been vacated; or~~be unable to pay its debts as they mature; (im) A there shall remain undischarged for more than thirty (30) days any final judgment ~~which~~or execution action against the Borrower or any of its Subsidiaries that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ the Borrower and its Subsidiaries exceeds ~~an amount~~ One Millon Dollars ($1,000,000) in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs~~ under clause (gk) ~~and (h) above~~or l), the ~~Commitments as to such defaulting Borrower~~ Commitment shall ~~thereupon~~ automatically ~~be terminated~~ terminate, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereon, and all other amounts payable thereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower; and (2) In the case of any Event of Default other than (k) and l), SingTel NA may, by written notice to the Borrower, ~~and/or (B)~~ terminate the ~~Commitments as to such defaulting Borrower, whereupon~~ Commitment and/or declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loans, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrower. No remedy herein conferred upon SingTel NA is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Term Loan Agreement (Unifi Communications Inc)

Events of Default; Acceleration. If any of the following events (~~each an "EVENT OF DEFAULT"~~“Events of Default”) shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower~~ Borrowers shall fail to pay when due and payable any principal of the Loan when the same becomes due; (b) any Loan Party shall fail to pay interest on the Loan or any other sum due under any of the Loan Documents within three (3) Business Days after the date on which the same shall have first become due and payable; (i) any Borrower shall ~~default~~ fail to perform any term, covenant or agreement contained in §§7.1(b)(i), 7.1(c), 7.1(d), 7.2, (ii) any Guarantor shall fail to perform any term, covenant or agreement contained in §8 of the Guaranty, or (iii) an “Event of Default” under and as defined in any Mortgage shall have occurred; (d) any Loan Party shall fail to perform any other term, covenant or agreement applicable to it contained in the ~~payment of principal of any Loan~~Loan Documents (other than those referred to in §§8(a), ~~interest accrued thereon or fee due hereunder~~ 8(b) and 8(c) above) within fifteen (15) days after the ~~same becomes due and payable, whether at maturity or by acceleration or otherwise,~~ earlier of (i) the date on which Lender has given written notice of such failure to the Borrowers or (ii) ~~shall default in~~ the ~~payment~~ date on which a Senior Officer of any ~~other amount due hereunder after the same becomes due and payable; or (b) Such~~ Borrower ~~shall default in the performance~~ obtains actual knowledge of ~~or compliance with any term contained in Sections 9.01(a) or 9.01(b) and~~ such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orfailure; (e) ~~Any representation,~~ any representation or warranty ~~certification or statement made or deemed made by such Borrower~~ of any Loan Party in ~~this Agreement~~ any Loan Document or in any ~~certificate, financial statement~~ certificate or ~~other document delivered pursuant hereto~~ notice given in connection therewith shall ~~prove to~~ have been false or ~~incorrect~~ misleading in any material respect ~~when~~ at the time made or deemed to have been made~~; or~~; (f) ~~Except as otherwise provided~~ any Loan Party shall be in ~~this Section 10.01, such Borrower shall~~ default in (after any ~~payment due on~~ applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness ~~for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is~~ in excess of ~~five percent (5%) of~~ $1,000,000 in aggregate principal amount, or shall fail to pay such ~~Borrower's Total Assets~~Indebtedness when due, ~~and such default shall continue for more than the~~ or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or; (g) ~~Such Borrower shall discontinue~~ any provision of any Loan Document, at any time after its ~~business (~~execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in ~~connection with a permitted merger~~ full of all the Obligations, ceases to be in full force and effect; or ~~consolidation~~ any Loan Party or any other Person contests in any manner the validity or enforceability of ~~such Borrower~~any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; (h) or any Loan Party (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally to pay its debts as such debts become due~~seek the appointment of, or ~~shall apply for or consent to~~ be the ~~appointment~~ subject of ~~or taking possession by~~ an order appointing, a trustee, liquidator or receiver as to all or ~~liquidator (or other similar official) of such Borrower or any substantial~~ part of ~~the property~~ its assets, (iv) shall commence, approve or ~~assets of such Borrower or shall commence a~~ consent to, any case or ~~have an order for relief entered against it~~ proceeding under ~~the federal bankruptcy laws, as now or hereafter constituted, or~~ any ~~other applicable federal or state~~ bankruptcy, ~~insolvency~~ reorganization or ~~other~~ similar ~~law~~law and, in the case of an involuntary case or ~~if any action shall be taken to dissolve~~ proceeding, such case or ~~liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If,~~ proceeding is not dismissed within sixty (60) days ~~after~~ following the commencement ~~against such Borrower~~ thereof, or (v) shall be the subject of a an order for relief in an involuntary case under ~~the~~ federal bankruptcy ~~laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar~~ law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or; (i) A any Loan Party shall be unable to pay its debts as they mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment ~~which~~or execution action against any Loan Party that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ any Loan Party (not covered by insurance) exceeds ~~an amount~~ $1,000,000 in the ~~aggregate equal to five percent~~ aggregate; (5%k) ~~of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ any Borrower shall be ~~rendered against~~ in default (after any applicable period of grace or cure period) under any Material Contract and such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ default shall not have been ~~discharged or execution thereof stayed pending appeal~~cured to the satisfaction of the other party thereto, or ~~if, within thirty (30) days after the expiration~~ any of ~~any~~ such ~~stay, such judgment~~ Material Contracts shall ~~not~~ have been ~~discharged~~terminated or not renewed; or (jl) ~~Such Borrower or~~ there occurs any ~~member of the Controlled Group shall fail to pay when due an amount or amounts aggregating~~ Change in ~~excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA~~Control; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromTHEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i) in In the case of any Event of Default ~~specified in paragraphs (g) and~~ under clause (h) ~~above~~or (i), the ~~Commitments as to such defaulting Borrower shall thereupon automatically be terminated~~ entire unpaid principal amount of the Loan, all interest accrued and unpaid thereon, and all other amounts payable thereunder and under the ~~principal of and accrued interest on the Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ each Borrower; and (ii) In the case of any Event of Default other than (h) and (i), ~~and/or (B) terminate~~ the ~~Commitments as~~ Lender may, by written notice to ~~such defaulting Borrower~~the Borrowers, ~~whereupon~~ declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loan, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by each Borrower. No remedy herein conferred upon the Lender is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Term Loan Agreement (Farmland Partners Inc.)

Events of Default; Acceleration. If any of the following events (each an "~~EVENT OF DEFAULT~~Event of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ The Company shall default in the payment of principal of or interest on any ~~Loan, interest accrued thereon~~ Note or any other fee due hereunder ~~after~~ when the same becomes due and payable, whether at maturity or ~~by acceleration or otherwise, or (ii) shall default in~~ at a date fixed for the payment of any ~~other~~ installment or prepayment thereof or otherwise; provided that in the case of a payment due pursuant to subsection 1.8(b), the Company shall make such payment within two (2) Banking Days after becoming aware that the outstanding principal amount ~~due hereunder after~~ of the ~~same becomes due and payable~~Loans exceeds the Available Line Commitment; or (b) ~~Such Borrower~~ The Company shall default in the performance of or compliance with any term contained in ~~Sections 9.01(a) or 9.01(b)~~ Section 6 (and such default shall ~~have continued~~ continue for ~~more than three~~ ten (310) ~~Banking Days,~~ days) or ~~such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~Section 7; or (c) ~~Such Borrower~~ The Company shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this Section ~~10.01,~~ 8 and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after written notice thereof shall have been given to ~~such Borrower~~ the Company by the ~~Operations Agent~~Agent (on the Lenders' behalf); or (d) ~~Such Borrower~~ The Company, any Subsidiary or any shareholder of the Company which is a party to any of the Security Documents shall default in the performance ~~of,~~ of or compliance ~~with,~~ with any ~~material~~ term contained in the Security Documents or in the performance of or compliance with any term contained in any other written agreement with the ~~Operations~~ Lenders or the Agent ~~or any Bank pertaining to this Agreement or such Borrower's Loans~~on the Lenders' behalf, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any ~~representation,~~ representation or warranty ~~certification or statement made or deemed~~ made by ~~such Borrower in this Agreement~~ the Company herein or ~~in any certificate, financial statement or other document delivered~~ pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ The Company or any Subsidiary shall default in any payment due on any Indebtedness ~~for~~ in respect of borrowed ~~money~~ money, any Capital Lease or the deferred purchase price of ~~property~~property with a principal balance, lease balance or purchase price (as the ~~aggregate outstanding principal amount of which is~~ case may be) in excess of ~~five percent (5%)~~ $1,000,000 outstanding as of the date of such ~~Borrower's Total Assets~~default, and such default shall continue for more than the period of grace, if any, applicable ~~thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity~~thereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.continue

Appears in 1 contract

Samples: Residual Interest in Securitized Assets Revolving Credit and Term Loan Agreement (Onyx Acceptance Corp)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such Borrower (i)~~ if the Company shall default in the payment of any principal of ~~any Loan, interest accrued thereon or fee due hereunder after~~ the Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) if the Company shall default in the payment of any ~~other amount due hereunder~~ interest on the Note for more than 5 days after the same becomes due and payable; or (bc) ~~Such Borrower~~ if the Company shall default in the performance of or compliance with any term contained in Sections ~~9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days~~10 to 17, ~~or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04~~inclusive; or (cd) ~~Such Borrower~~ if the Company shall default in the performance of or compliance with any term contained herein other than those ~~expressly~~ referred to above in this Section ~~10.01,~~ 22 and such default shall not have been remedied within ~~five~~ 30 days after the earlier of (5i) ~~Banking Days after~~ any principal officer of the Company obtaining knowledge thereof or (ii) written notice thereof ~~shall have~~ having been given to the Company by any holder of the Note, but if such ~~Borrower by~~ default cannot reasonably be remedied within such 30-day period but can be remedied within 60 days thereafter, it shall not constitute an Event of Default hereunder if the ~~Operations Agent~~Company shall commence to remedy such default within such 30-day period and shall diligently continue until such default is remedied; or (de) ~~Such Borrower~~ if any representation or warranty made in writing by or on behalf of the Company herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall prove to have been false or incorrect in any material respect on the date as of which made; or (f) if the Company or any Subsidiary shall default (as principal or guarantor or other surety or otherwise) in the payment of any principal of or premium, if any, or interest on any indebtedness in respect of borrowed money or any capital lease obligation having an aggregate principal amount of not less than $1,000,000 and such default shall continue for more than the period of grace, if any, applicable thereto, or if the Company or any Subsidiary shall default in the performance ~~of,~~ of or compliance ~~with~~with any term of any evidence of such indebtedness or obligation or of any mortgage, ~~any material term contained in any~~ indenture or other ~~written~~ agreement ~~with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans~~relating thereto having an aggregate principal amount of not less than $1,000,000, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) ~~Such Borrower shall discontinue its business (other than in connection with a permitted merger~~ if the Company or ~~consolidation of such Borrower) or~~ any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Company or such ~~Borrower~~ Subsidiary or any substantial part of ~~the property or assets of such Borrower~~ its property, or shall commence a case or have an order ~~for~~ to relief entered against it under the ~~federal~~ Federal bankruptcy laws, as now or hereafter constituted, or any other applicable ~~federal~~ Federal or state bankruptcy, insolvency or other similar law, or if the Company or any Significant Subsidiary or its directors or majority shareholders shall take any action ~~shall be taken~~ looking to ~~dissolve~~ the dissolution or ~~liquidate~~ liquidation of the Company or such ~~Borrower (other than in connection with a permitted merger or consolidation of such Borrower)~~Significant Subsidiary; or (h) Ifif, within ~~sixty (60)~~ 60 days after the commencement against ~~such Borrower~~ the Company or any Subsidiary of a case under the ~~federal~~ Federal bankruptcy laws, as now or hereafter constituted, or any other applicable ~~federal~~ Federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company or such ~~Borrower~~ Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within ~~sixty (60)~~ 60 days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of the Company or such ~~Borrower~~ Subsidiary or any substantial part of ~~the property of such Borrower~~ its property, such appointment shall not have been vacated; or (i) A if a final judgment which, ~~together~~ with other outstanding final judgments against ~~such Borrower~~the Company and its Subsidiaries, exceeds an ~~amount in the~~ aggregate ~~equal to five percent (5%)~~ of ~~such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ $1,000,000 shall be rendered against ~~such Borrower~~ the Company or any Subsidiary and if, within ~~thirty (30)~~ 60 days after the entry thereof, such judgment shall not have been ~~discharged or~~ discharged, execution thereof stayed pending appeal, or ~~if,~~ if said judgment shall not have been bonded pursuant to an order of court within ~~thirty (30)~~ 60 days after the expiration of any such stay, such judgment shall not have been discharged; or (j) ~~Such Borrower~~ if any Banking Subsidiary shall become insolvent, or any ~~member of the Controlled Group shall fail to pay when due an amount~~ receiver, conservator, liquidating agent or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 governmental authority shall be ~~filed under Title IV~~ appointed for or take possession or charge of ~~ERISA by~~ such ~~Borrower~~ Banking Subsidiary or ~~any member~~ all or substantially all 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actits assets, or such ~~Borrower's registration under the Investment Company Act, or that~~ Banking Subsidiary shall suspend payment of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, its obligations; (i) in upon the ~~case~~ occurrence of any Event of Default (other than an Event of Default specified in ~~paragraphs (g) and~~ Clause (h) ~~above~~or (j) above ), you, at your option, may (unless all defaults shall have theretofore been remedied), by written notice or notices to the ~~Commitments as~~ Company, declare all amounts outstanding under the Note to ~~such defaulting Borrower~~ be due and payable, whereupon the same shall ~~thereupon automatically be terminated~~ forthwith mature and ~~the principal of and accrued interest on the Loans shall automatically~~ become due and payable in an amount equal to the principal balance of the Note together with interest accrued thereon, plus a Make-Whole Amount, (collectively the "Default Amount"), without presentment, demand, protest or ~~other notice or formality of any kind~~notice, all of which are hereby ~~expressly~~ waived~~, and (ii) in the case of any other~~ . If an Event of Default specified ~~above~~in Clause (h) or (j) above occurs and is continuing, ~~either or both of~~ then the ~~following actions may~~ Default Amount shall ipso facto become and be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without ~~presentment, demand, protest~~ any declaration or other ~~notice~~ act on your part. At any time after the principal of the Note has been declared due and payable and before any ~~kind~~judgment with respect thereto has been entered, ~~all~~ such declaration and its consequences may be rescinded and annulled with the consent of ~~which are hereby expressly waived~~ the holders of a majority of the outstanding principal amount of the Note by ~~such Borrower, and/or (B) terminate~~ the ~~Commitments as~~ filing with the Company of a written instrument or instruments to such ~~defaulting Borrower~~effect; provided, ~~whereupon~~ however, that no such rescission or annulment will be permitted unless all arrears of interest and all other sums payable under the ~~Commitments~~ Note and under this Agreement (other than amounts due by reason of ~~the Banks~~ acceleration) shall have been duly paid; provided, further, that no such rescission shall extend to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ or affect any ~~other notice~~ subsequent default or Event of Default or impair any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationright consequent thereon.

Appears in 1 contract

Samples: Indenture Agreement (Mason Dixon Bancshares Inc/Md)

Events of Default; Acceleration. If any of the following ------------------------------- conditions or events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall occur ~~with respect to any Borrower~~and be continuing: (a) ~~Such Borrower (i)~~ if the Company shall default in the payment of any principal of or premium, if any, on or any ~~Loan,~~ other amount (other than interest ~~accrued thereon~~ not paid in connection with a prepayment or ~~fee due hereunder after~~ redemption) with respect to any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by ~~acceleration~~ declaration or otherwise~~, or~~ ; or (iib) if the Company shall default in the payment of any cash interest (other ~~amount due hereunder~~ than interest paid in connection with a prepayment or redemption) or pay- in-kind interest on any Note for more than 15 days after the same becomes due and payable; or (bc) ~~Such Borrower~~ if the Company shall default in the performance of section 11.5; or (d) if the Company shall default in the performance of or compliance with any other term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this ~~Section 10.01,~~ Agreement and such default shall not have been remedied within ~~five (5) Banking Days~~ 30 days after such failure shall first have become known to any Responsible Officer of the Company or written notice thereof shall have been ~~given to such Borrower~~ received by the ~~Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with,~~ Company from any ~~material term contained in~~ holder of any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoNote; or (e) ~~Any representation,~~ if any representation or warranty ~~certification~~ made in writing by or ~~statement made or deemed made by such Borrower~~ on behalf of the Company in this Agreement or in any ~~certificate, financial statement or other document delivered pursuant hereto~~ instrument furnished in compliance with this Agreement shall prove to have been false or incorrect in any material respect ~~when~~ on the date as of which made; or (f) ~~Except as otherwise provided in this Section 10.01, such Borrower~~ v if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any ~~payment due~~ principal of or premium or interest on ~~Indebtedness for borrowed money or the deferred purchase price of property, the aggregate~~ any Senior Debt which is outstanding in a principal amount of at least $15,000,000 (or on any one or more items of Senior Debt which is are outstanding in ~~excess~~ the aggregate in a principal amount of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityat least $15,000,000), or if any event shall occur or condition shall exist in ~~the performance~~ respect of any such Debt or ~~compliance with any term of~~ under any evidence of any such ~~Indebtedness~~ Debt or of any mortgage, indenture or other agreement relating thereto, the effect of which default in payment event or condition is to cause the acceleration of the payment of such Debt, or to require the Company or Subsidiary to repurchase such Debt, before its stated maturity or before its regularly scheduled dates of payment, provided that in -------- the event such default in payment or such event or condition is waived and any acceleration rescinded prior to the acceleration of the Notes or the commencement of any exercise of remedies under section 13 and in any event within 30 days following such ~~default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the~~ occurrence by each affected holder of such ~~Indebtedness to declare such Indebtedness due~~ Debt and ~~payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith~~ by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, each Person that ~~no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing~~ acquired a remedy as a result of such ~~claim having been asserted~~ default in ~~respect of~~ payment or such ~~Indebtedness~~event or condition, then such default in payment or such event or condition shall be deemed waived hereunder; or (g) ~~Such Borrower~~ if a final judgment or judgments shall ~~discontinue its business~~ be rendered against the Company or any Subsidiary for the payment of money in excess of $15,000,000 in the aggregate (~~other than in connection with a permitted merger or consolidation~~ excluding any such judgment covered by insurance not disputed by the carrier thereof) and any one of such ~~Borrower~~judgments shall not be discharged or execution thereon stayed or bonded pending appeal within 90 days after entry thereof or, in the event of such a stay, such judgment shall not be discharged or satisfied within 90 days after such stay expires; or (h) if the Company or any Material Subsidiary shall (i) be generally not paying its debts as they become due, (ii) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (iii) make an assignment for the benefit of its creditors, ~~or shall fail generally to pay its debts as such debts become due, or shall apply for or~~ (iv) consent to the appointment of ~~or taking possession by~~ a ~~trustee~~custodian, ~~receiver or liquidator (~~receiver, trustee or other officer with similar ~~official) of such Borrower~~ powers with respect to it or with respect to any substantial part of its property, (v) be finally adjudicated insolvent or (vi) take corporate action for the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay purpose of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the ~~property of such Borrower such appointment shall not have been vacated~~foregoing; or (i) ~~A final judgment which~~if a court or Governmental Authority of competent jurisdiction shall enter an order appointing, ~~together~~ without consent by the Company or any Material Subsidiary, a custodian, receiver, trustee or other officer with ~~other outstanding final judgments against such Borrower~~similar powers with respect to it or with respect to any substantial part of its property, ~~exceeds~~ or if an ~~amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance)~~ order for relief shall be ~~rendered~~ entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any Material Subsidiary, or if any petition for any such relief shall be filed against the Company or any Material Subsidiary and such ~~Borrower and if, within thirty (30) days after entry thereof, such judgment~~ petition shall not ~~have been discharged or execution thereof stayed pending appeal, or if,~~ be dismissed within ~~thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged~~60 days; or (j) ~~Such Borrower~~ the Company shall be in default of or shall breach any ~~member~~ of its obligations under the Procurement Contract and as a result thereof such Procurement Contract shall have terminated; provided that no Event of Default shall exist under this clause (j) if (i) none of the ~~Controlled Group~~ Notes are then held by the Vendor or, if held by the Vendor, participations have been granted in such Notes (other than participations to Persons who are Affiliates) or (ii) the Company shall have acquired from the Vendor, shall have deployed and shall have paid all amounts to the Vendor with respect to a mobile switching center and fifty base stations for each of the following Designated Areas: Memphis, Tennessee; Little Rock, Arkansas; New Orleans, Louisiana and Boston, Massachusetts and, if you shall have provided financing for any Expansion Areas, a mobile switching station and fifty base stations for each such Expansion Area. (k) the Company and AT&T shall fail to ~~pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to~~ consummate the ~~PBGC or to a Plan~~ transactions contemplated under ~~Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member~~ Article II and III of the ~~Controlled Group~~Securities Purchase Agreement and under the Related Agreements on or prior to September 30, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,0001998; or (kl) ~~Such Borrower~~ the Company shall ~~cease~~ fail to ~~be an investment management company~~ enter into the Credit Agreement and obtain term loans thereunder in a principal amount of not less than $75,000,000 on or prior to September 30, 1998; or (~~or a Portfolio thereof~~m) ~~registered~~ the Company shall fail to repay all amounts under the ~~Investment Company Act~~Extended Payment Terms Facility on or prior to September 30, ~~or such Borrower's registration under~~ 1998; (A) upon the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default ~~specified~~ described in paragraphs (gh) and (hi) ~~above~~of this section 12, the Commitments as shall automatically terminate and (B) with respect to ~~such defaulting Borrower~~ any other Event of Default, the Required Holders of the Notes (subject to section 17) may by notice to the Company declare the Commitments terminated forthwith whereupon the Commitments shall ~~thereupon automatically~~ be ~~terminated~~ terminated, and (ii) (A) upon the occurrence of any Event of Default described in paragraphs (h) and (i) of this section 12, the unpaid principal amount of and accrued interest on the ~~Loans~~ Notes shall automatically be due and payable or (B) with respect to any other Event of Default (x) if such event is an Event of Default described in paragraphs (a), (b), (f), (j), or (k), of this section 12 the Required Holders of Notes at such time outstanding (subject to section 17) may at any time (unless all defaults shall have been remedied) at its or their option, by written notice or notices to the Company, declare the Notes to be due and payable; or (y) if such event is an Event of Default described in any other - paragraph of this section 12 and such event occurs before the Credit Agreement shall have been executed and delivered and shall be in full force and effect, the Required Holders of the Notes (subject to section 17) may declare the Notes due and payable; whereupon, with reference to any such declaration, the Notes shall forthwith mature and become due and payable together with interest accrued thereon, without presentment, demand, protest or ~~other notice or formality of any kind~~notice, all of which are hereby ~~expressly~~ waived. At any time after the principal of, and ~~(ii)~~ interest on, all the Notes are declared due and payable, the holders of 66 2/3% or more in ~~the case of any other Event of Default specified above, either or both~~ aggregate principal amount of the ~~following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~Notes then outstanding, by written notice to the Company, may rescind and annul any such ~~defaulting Borrower~~ declaration and its consequences if (A1) ~~declare~~ the Company has paid all overdue interest on the Notes and the principal of, and premium, if any, on any Notes which have become due otherwise by reason of such declaration, and ~~accrued~~ interest on such overdue principal and premium and (to the extent permitted by applicable law) any overdue interest in respect of ~~such defaulting Borrower's Loans to be forthwith~~ the Notes at the rate of 2% per annum above the then effective rate of interest on the Notes, (2) all Events of Default, other than non-payment of amounts which have become due ~~and payable, whereupon the principal of and accrued interest in respect~~ solely by reason of such ~~Loans~~ declaration, and all conditions and events which constitute Events of Default or Potential Events of Default have been cured or waived and (3) no judgment or decree shall ~~become forthwith due and payable without presentment, demand, protest or other notice~~ have been entered for the payment of any ~~kind, all~~ monies due pursuant to the Notes or this Agreement that has not been vacated; but no such rescission and annulment shall extend to or affect any subsequent Event of ~~which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments~~ Default or Potential Event of ~~the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without~~ Default or impair any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationright consequent thereon.

Appears in 1 contract

Samples: Note Purchase Agreement (Telecorp PCS Inc)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower shall fail to pay when due and payable any principal of the Loan when the same becomes due; (b) the Borrower shall fail to pay interest on the Loan or any other sum due under any of the Loan Documents within two (2) Business Days after notice from the Bank as to the amount(s) due and payable; (c) the Borrower shall fail to perform any term, covenant or agreement contained in [sections]7.1(a), 7.1(d) through (f), 7.2, 7.3 or in the Mortgage; (d) the Borrower shall fail to perform any other term, covenant or agreement contained in the Loan Documents within fifteen (15) days after the Bank has given written notice of such failure to the Borrower; (e) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (f) the Borrower shall be in default (after any applicable period of grace or cure period) under the Original Term Loan Agreement, the Fleet Credit Agreement or any agreement or agreements evidencing Indebtedness owing to a person or entity other than the Bank or any affiliates of the Bank or in excess of $500,000 in aggregate principal amount, or shall fail to pay such Indebtedness when due, or within any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, (h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail generally~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature; (hj) ~~If, within sixty~~ there shall remain undischarged for more than thirty (6030) days ~~after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or~~ any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment ~~which~~or execution action against the Borrower that, together with other outstanding ~~final judgments~~ claims and execution actions against ~~such Borrower,~~ the Borrower exceeds ~~an amount~~ $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs (g) and~~ under clause (h) ~~above~~or (i), the ~~Commitments as~~ obligation of the Bank, if any, to ~~such defaulting Borrower~~ make any Advances pursuant to [section]2 shall ~~thereupon automatically be terminated~~ terminate, and the entire unpaid principal amount of the Loan, all interest accrued and ~~accrued interest on~~ unpaid thereon, and all other amounts payable thereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower; and (2) In the case of any Event of Default other than (h) and (i), the Bank may, by written notice to the Borrower, ~~and/or (B)~~ terminate the ~~Commitments as to such defaulting Borrower, whereupon the Commitments~~ obligation of the ~~Banks~~ Bank, if any, to make ~~Committed Credit Loans~~ Advances pursuant to [section]2 hereof and/or declare the unpaid principal amount of the Loan, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to ~~such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrower. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~the percentages of the Commitment Fee~~ each and ~~other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Term Loan Agreement (Cytotherapeutics Inc/De)

Events of Default; Acceleration. If Upon the occurrence of any of the following events (~~each~~ each, an ~~"EVENT OF DEFAULT") shall occur with respect to any Borrower:~~“Event of Default”): (a) ~~Such Borrower~~ the Company shall (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of ~~or taking possession by~~ a ~~trustee~~receiver, ~~receiver~~ trustee or liquidator of itself or of its property, (ii) make a general assignment for the benefit of creditors, (iii) be adjudicated a bankrupt or ~~other similar official~~insolvent, (iv) file a voluntary petition in bankruptcy, or a petition or answer seeking reorganization or an arrangement with creditors to take advantage of ~~such Borrower~~ any insolvency law, or an answer admitting the material allegations of a bankruptcy, reorganization or insolvency petition filed against it, (vi) take corporate action for the purpose of effecting any ~~substantial part~~ of the ~~property~~ foregoing, or ~~assets of such Borrower or shall commence a case or~~ (vii) have an order for relief entered against it in any proceeding under the ~~federal bankruptcy laws~~United States Bankruptcy Code; (b) An order, ~~as now~~ judgment or ~~hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action~~ decree shall be ~~taken~~ entered, without the application, approval or consent of the Company by any court of competent jurisdiction, approving a petition seeking reorganization of the Company or appointing a receiver, trustee or liquidator of the Company or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; (c) the Company shall fail to ~~dissolve~~ pay as and when due any principal or ~~liquidate~~ interest hereunder and such ~~Borrower~~ nonpayment shall continue uncured for a period of five (~~other than in connection with a permitted merger or consolidation of such Borrower)~~5) business days after written notice by the Holder thereof; or (hd) ~~If, within sixty~~ A default or defaults (60after exhausting all applicable cure periods) ~~days after~~ in the ~~commencement against such Borrower~~ amount of ~~a case~~ $100,000 individually or in the aggregate under the ~~federal bankruptcy laws, as now~~ terms of one or ~~hereafter constituted~~more instruments evidencing or securing indebtedness of the Company, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedits subsidiaries; then, and in ~~any~~ every such ~~event,~~ event and at any time thereafter, ~~if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in~~ the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent Holder may~~, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall~~, by written notice to ~~such defaulting Borrower (A) declare~~ the Company and subject to the Subordination Agreements, accelerate the payment of all amounts due under this Note, whereupon the unpaid principal of this Note, together with any accrued and ~~accrued interest in respect of such defaulting Borrower's Loans to be forthwith~~ unpaid Interest hereon shall become immediately due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 1 contract

Samples: Convertible Note (EdgeWave, Inc.)

Events of Default; Acceleration. If any of the following events (~~each an~~ "~~EVENT OF DEFAULT~~Events of Default") shall ~~occur with respect to any Borrower~~occur: (a) ~~Such~~ the Borrower shall fail to pay when due and payable any principal of the Loans when the same becomes due; (b) the Borrower shall fail to pay interest on the Loans, any Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to ss.2.2(c), or any other sum due under any of the Loan Documents on the date which the same shall have first become due and payable; (c) the Borrower shall fail to perform any term, covenant or agreement contained in ss.ss.10.1(a), 10.1(d) and 10.1(e), 10.2 and 10.3; (d) the Borrower shall fail to perform any other term, covenant or agreement contained in the Loan Documents within fifteen (15) days after the Bank has given written notice of such failure to the Borrower; (e) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (f) the Borrower shall be in default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to the Bank or any affiliates of the Bank or in excess of $100,000 in aggregate principal amount, or shall fail to pay such Indebtedness when due, or within any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, (h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall ~~fail~~ seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower shall be generally unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedthey mature; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall ~~occur a complete~~ remain undischarged for more than thirty (30) days any final judgment or ~~partial withdrawal from~~execution action against the Borrower that, together with other outstanding claims and execution actions against the Borrower exceeds insurance coverage by $25,000 in the aggregate; THEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter~~, if any Event of Default shall then be continuing with respect to such defaulting Borrower,~~ : (i1) in In the case of any Event of Default ~~specified in paragraphs (g) and~~ under clause (h) ~~above~~or (i), the Commitments ~~as to such defaulting Borrower~~ shall ~~thereupon~~ automatically ~~be terminated~~ terminate and the Bank shall be relieved of all further obligations to make Loans or to issue, renew or extend any Letters of Credit, and the entire unpaid principal amount of the Loans, all interest accrued and ~~accrued interest on~~ unpaid thereon, all Unpaid Reimbursement Obligations, and all other amounts payable thereunder and under the ~~Loans~~ other Loan Documents shall automatically become forthwith due and ~~payable~~ payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by ~~such~~ the Borrower, ~~and/or~~ and the Bank may require that cash be delivered to the Bank in the amount of the Maximum Drawing Amount to be held by the Bank as cash collateral for all Reimbursement Obligations; and (B2) In the case of any Event of Default other than (h) and (i), the Bank may, by written notice to the Borrower, terminate the Commitments ~~as to such defaulting Borrower, whereupon~~ and/or declare the ~~Commitments~~ unpaid principal amount of the ~~Banks~~ Loans, all interest accrued and unpaid thereon, all Unpaid Reimbursement Obligations, and all other amounts payable hereunder and under the other Loan Documents to ~~make Committed Credit Loans hereunder to such defaulting Borrower shall~~ be forthwith ~~terminate~~ due and payable, without ~~any other~~ presentment, demand, protest or further notice of any ~~kind~~ kind, all of which are hereby expressly waived by the Borrower, and the ~~percentages~~ Bank may require that cash be delivered to the Bank in the amount of the ~~Commitment Fee~~ Maximum Drawing Amount to be held by the Bank as cash collateral for all Reimbursement Obligations. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and ~~other fees~~ each and ~~expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination~~ every remedy shall be ~~reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1~~cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in ~~effect at the time of such termination~~equity or otherwise.

Appears in 1 contract

Samples: Credit Agreement (Arrowpoint Communications Inc)

Events of Default; Acceleration. If ~~any~~ one or more of the following ~~events~~ occurs (each an ~~"EVENT OF DEFAULT") shall occur with respect to any Borrower:~~“Event of Default”): (a) ~~Such~~ The Borrower shall be involved in financial difficulties as evidenced: (i) ~~shall default~~ by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect; (ii) by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under said Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert timely the material allegations of any such petition; (iii) by the entry of an order for relief in any involuntary case commenced under said Title 11; (iv) by the entry of an order by a court of competent jurisdiction (A) by finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, or (C) assuming custody of, or appointing a receiver or other custodian for all or a substantial part of its property and such order shall not be vacated or stayed on appeal or otherwise stayed within 120 days; (v) by the filing of a petition against the Borrower under said Title 11 which shall not be vacated within 120 days; or (vi) by its making an assignment for the benefit of, its creditors, or appointing or consenting to the appointment of a receiver or other custodian for all or a substantial part of its property; (b) The Borrower shall sell substantially all of its assets to an unaffiliated third party in one or more of a series of related transactions; (c) the Borrower shall fail to make a payment of any installment of the outstanding principal or interest amount of ~~any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable,~~ this Note (whether ~~at maturity or~~ by acceleration or otherwise, ) which failure or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default breach shall not ~~have been remedied~~ be cured within ~~five (5) Banking Days~~ 30 days after written notice thereof ~~shall have been given~~ from the holder of this Note to ~~such Borrower by~~ the ~~Operations Agent~~Borrower; or (d) ~~Such Borrower shall default in~~ if the ~~performance of, or compliance with, any material term contained in any other written agreement with~~ proceeds of the ~~Operations Agent or any Bank pertaining to~~ loan evidenced by this ~~Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not~~ Note have been ~~waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower~~ used other than for a purpose set forth in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%3(c) of ~~such Borrower's Total Assets,~~ the Note and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or 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 or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans 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, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; Warrant Purchase Agreement. then, and in any such event, and at any time thereafter, if any Event of Default shall ~~then~~ be ~~continuing with respect~~ continuing, subject to ~~such defaulting~~ Section 7, at the option of the holder of this Note upon written notice to the Borrower, ~~(i) in~~ the ~~case~~ outstanding principal of any ~~Event~~ and all accrued but unpaid interest in respect of ~~Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower~~ this Note shall ~~thereupon automatically~~ be ~~terminated and the principal of and accrued interest on the Loans shall automatically become~~ immediately due and payable upon delivery of such written notice, without presentment, demand, protest or ~~other notice or formality of~~ any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any ~~kind~~kind being required, all of which are hereby expressly waived by ~~such~~ the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.

Appears in 1 contract

Samples: Subordination Agreement (Calpian, Inc.)

Common use of Events of Default; Acceleration Clause in Contracts