Events of Default and Acceleration. If any of the following events ("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: (a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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; (b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10; (d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss. 13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent; (e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated; (f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof; (g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted; (i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000; (j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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; (k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan; (l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days; (m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole; (n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole; (o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or (p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Corp)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Term Loans or any Reimbursement Obligation when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall, except with respect to the failure to pay the outstanding principal amount of the Term Loans on the Maturity Date (for which no cure period shall exist), continue for a period of five (5) days;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Term Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) the Borrower or the Guarantor shall fail to comply with any of its covenants contained in ss.8§§8.1, 8.2 (other than, with respect to the Guarantor, moves within the State of California, or with respect to the Borrower, moves within Barbados), 8.4, 8.5, 8.6, 8.9, 8.12, 9 or 1010 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Loan Agreement);
(d) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
§13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower or the Guarantor by the Administrative Agent;
(e) any representation or warranty of the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Loan Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Loan Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) Borrower, the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries shall (x) fail to pay at maturity, or within any applicable period of grace, (i) any obligations obligation for borrowed money or credit received or in an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate20,000,000, or (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrower, the Guarantor or any of their respective Subsidiaries thereunder exceeds $20,000,000, or (y) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound referenced in clauses (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, i) through (iii) above for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gi) the Borrower Borrower, the Guarantor or any of the other Transaction Parties Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower Borrower, the Guarantor or any of the other Transaction Parties such Material Subsidiary or of any substantial part of the assets of the Borrower Borrower, the Guarantor or any of the other Transaction Parties such Material Subsidiary or shall commence any case or other proceeding relating to the Borrower Borrower, the Guarantor or any of the other Transaction Parties such Material Subsidiary 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 (ii) if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower Borrower, the Guarantor or any of Material Subsidiary and, with respect to this clause (ii) only, (x) the other Transaction Parties and Borrower, the Borrower Guarantor or any of the other Transaction Parties such Material Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or (y) such petition or application shall not have been dismissed within forty-five thirty (4530) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Borrower, the Guarantor or any of the other Transaction Parties Material Subsidiary 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 Borrower, the Guarantor or any of the other Transaction Parties Material Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against Borrower, the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against Borrower, the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked revoked, voided or rescindedrescinded or the Administrative Agent’s 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective 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 determination that, or 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;
(k) the Borrower any Loan Party or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan in connection with the termination of a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower 5,000,000, or any Loan Party or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0005,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(0(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower Borrower, the Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 5,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien Lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower Borrower, the Guarantor or any of the other Transaction Parties Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) Borrower, the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against Borrower, the Borrower Guarantor or any the other Transaction Partiesof their respective Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower Borrower, the Guarantor or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower, the Guarantor or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,0005,000,000; or
(p) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Loan Agreement, the Term Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrower and the Guarantor; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§§13.1(g) or 13.1(h), all such amounts shall become immediately due and payable payable, automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 2 contracts
Samples: Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)9, 9 10 or 1011;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of its Subsidiaries (other than a Non- Material Subsidiary unless the Borrower or any other Transaction Parties Subsidiary has been adversely effected by the occurrence of such event (a "Deminimis Subsidiary")) shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or of any substantial part of the assets of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or shall commence any case or other proceeding relating to the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) and the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 or any Subsidiary (other than a Deminimis Subsidiary) of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) that, with other outstanding final judgments, undischarged, against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) exceeds in the aggregate $5,000,0001,000,000;
(j) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; ERISA, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000Plan, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Agent determines -------- in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall be 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 order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Partiesits Subsidiaries, considered taken as a whole;
(op) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(pq) 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 thirty percent (30%) % or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Borrower; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event -------- of Default specified in ss.ss.13.1(g(S)(S)14.1(g), 14.1(h) or 13.1(h14.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of any of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, or any Letter of Credit Fee, the Agent's fee, other fees or other sums due hereunder or under any of the other Loan Documents, within two ten (210) Business Days days after the day on which 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) the Borrower or the Trust shall fail to comply with any of its covenants covenant contained in ss.8§9, 9 and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent; provided, however, that in the event that Borrower or 10the Trust shall fail to comply with §9.5, then the same shall not constitute a Default hereunder in the event that Borrower prepays the Loans or provides additional Unencumbered Borrowing Base Property in accordance with the terms of this Agreement in an amount sufficient such that Borrower and the Trust would be fully in compliance with the covenant set forth in §9.5 within five (5) days of the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance, (ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of written notice of such noncompliance from Agent; and provided further, that during any period in which Borrower or the Trust shall fail to be in compliance of any covenant in §9.5, then the Banks shall have no obligation to make Loans;
(d) the Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) §12), and such failure shall continue for twenty thirty (2030) days after written notice of sucH failure has thereof shall have been given to the Borrower by the Agent; provided , however , that in the event that such failure shall be a failure to comply with the terms of §8.7(b), the Borrower shall be afforded a period of one (1) fiscal quarter to cure such failure provided that the Distribution which caused such failure was historically consistent with prior dividends; provided , further that no cure period shall be available with respect to a failure to comply with the terms of §7.5(a) or §8.4;
(e) any representation or warranty made by or on behalf of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases exceeding $5,000,000 in the aggregate, for Derivatives Contract)for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment or purchase thereof, provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(g) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,00010,000,000.00;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or Borrower, any Guarantor, any of the other Transaction Parties party thereto their respective Subsidiaries or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Trust or any of their respective Subsidiaries or any sale, transfer or other disposition of the assets of the Borrower, the Trust or any of their respective Subsidiaries other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following occurs the filing or commencement thereof;
(n) the Borrower, any Guarantor, any of their respective Subsidiaries or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries, including the Real Estate;
(o) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; Plan or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lp) a Change of Control shall occur;
(q) Xxxxxx Xxxxxxxxxx shall cease to be active on a daily basis in the management of the Trust and the Borrower or and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default (as defined in any of the other Transaction Parties Loan Documents) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000occur; or
(ps) The Borrower and the Guarantor and any person of their respective Subsidiaries shall fail to pay at maturity, 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any applicable period of twelve consecutive calendar monthsgrace, individuals who were directors of the Borrower on the first day of any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period shall cease of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to constitute accelerate the maturity thereof or require a majority of the board of directors of the Borrower redemption, retirement, prepayment, purchase or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)defeasance thereof; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower (in addition to the rights afforded under §12.3) declare all amounts owing with respect to this Credit Agreement, the Notes Notes, and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 . In the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Banks or any Bankthe Agent.
Appears in 2 contracts
Samples: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the The following events ("shall constitute “Events of Default" or, if the giving ” for purposes of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, "Defaults") shall occurthis Agreement:
(a) the Either Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation Loan when 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;; or
(b) the Either Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment feeany Loan, any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two for a period of three (23) Business Days after following the day on which date when 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;; or
(ci) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties Any Loan Party shall fail to perform any term, covenant or agreement contained in Section 6.05, Section 6.06 (but only as to corporate existence), Section 6.10, Section 6.11, Section 6.13 through 6.30, inclusive, or, for so long as NEE Partners has any obligations pursuant to the NEE Partners Guaranty, NEE Partners shall fail to perform any term, covenant or agreement contained in Article IV of the NEE Partners Guaranty or (ii) any Loan Party shall fail to perform any term covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 8.01) for twenty thirty (2030) days after written notice Notice of sucH such failure has been given to the Borrower Borrowers by the Agent;Agent or any Lender; or
(ed) any Any representation or warranty of the Borrower or any of the other Transaction Parties Loan Party in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, or for so long as NEE Partners has obligations pursuant to the NEE Partners Guaranty any representation or warranty of NEE Partners in the NEE Partners Guaranty, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;by the terms of this Agreement; or
(fe) Any Loan Party, NEE Partners (if the Borrower NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any Material Project Company, shall default in the payment when due of any principal of or any of the other Transaction Parties shall fail to pay at maturity, interest on any Funded Debt aggregating US$50,000,000 or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregatemore, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money Funded Debt, in an aggregate amount of US$50,000,000 or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregatemore, for such period of time as would permit (assuming the giving of appropriate notice or the lapse of time if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;, unless such failure shall have been cured by such Loan Party, NEE Partners or such Material Project Company, as the case may be, or effectively waived by such holder or holders, provided that no Event of Default shall result under this paragraph (f) from an event or circumstance limited to a Material Project Company unless, as result thereof and giving Pro Forma Effect thereto, US Holdings or OpCo would be in violation of Section 6.13, provided further, that no Event of Default shall result under this paragraph (e) from an event or circumstance under the Cash Sweep and Credit Support Agreement until XXXX shall have initiated or participated in legal proceedings to enforce its right to payment under the Cash Sweep and Credit Support Agreement; or
(gf) Any Loan Party, NEE Partners (if the Borrower NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any Material Project Company shall (1) voluntarily terminate operations or any apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person, or of all or a substantial part of the other Transaction Parties shall assets of such Person, (2) admit in writing its inability, or be generally unable, to pay its debts as the debts become due, (3) make an a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code (as now or admit hereafter in effect), (5) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, (6) fail to controvert in a timely and appropriate manner, or acquiesce in writing its inability to pay or generally fail to pay its debts as they mature or become dueto, any petition filed against it in an involuntary case under the Bankruptcy Code, or (7) take any corporate action for the purpose of effecting any of the foregoing; provided that no Event of Default shall petition result under this paragraph (f) from an event or apply for circumstance limited to a Material Project Company unless, as result thereof and giving Pro Forma Effect thereto, US Holdings or OpCo would be in violation of Section 6.13; or
(g) without its application, approval or consent, a proceeding shall be commenced, in any court of competent jurisdiction, seeking in respect of any Loan Party, NEE Partners (if the NEE Partners Guaranty is in effect) or, after March 31, 2016 and subject to the proviso below, any Material Project Company: the liquidation, reorganization, dissolution, winding-up, or composition or readjustment of debt, the appointment of a trustee or other custodiantrustee, receiver, liquidator or receiver the like of the Borrower or any of the other Transaction Parties such Person, or of all or any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case such Person, or other proceeding like relief in respect of such Person under any law relating to the Borrower or any of the other Transaction Parties under any bankruptcy, insolvency, reorganization, arrangementwinding-up, insolvencyor composition or adjustment of debts unless such proceeding is contested in good faith by such Person; and, readjustment of debtif the proceeding is being contested in good faith by such Person, dissolution the same shall continue undismissed, or liquidation or similar law of any jurisdiction, now or hereafter unstayed and in effect, or shall take for any action to authorize or in furtherance period of any of the foregoingninety (90) consecutive days, or if any an order for relief against such petition or application Person shall be filed entered in any involuntary case under the Bankruptcy Code; provided that no Event of Default shall result under this paragraph (g) from an event or any such case circumstance limited to a Material Project Company unless, as result thereof and giving Pro Forma Effect thereto, US Holdings or other proceeding shall OpCo would be commenced against the Borrower or any in violation of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;Section 6.13; or
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against any Loan Party or, NEE Partners (if the Borrower or any of the other Transaction Parties NEE Partners Guaranty is in effect) that, with other then undischarged, unsatisfied and unstayed, outstanding final judgmentsjudgments against such Loan Party, undischargedas the case may be, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;US$50,000,000; or
(ji) if any of the Loan Documents or the NEE Partners Guaranty (other than to the extent provided therein) shall be cancelledcanceled, terminated, revoked or rescindedrescinded by any applicable Loan Party or NEE Partners, respectively, other than in each case otherwise than accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banksall Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the NEE Partners Guaranty (other than to the extent provided therein) shall be commenced by or on behalf of the Borrower any applicable Loan Party, or any of the other Transaction Parties party thereto NEE Partners, respectively, or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency Governmental Authority 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 Loan Documents or the NEE Partners Guaranty is illegal, invalid or unenforceable in accordance with the terms thereof;; or
(kj) (i) with respect to any Guaranteed Pension Plan, (A) an ERISA Reportable Event shall have occurred; (B) an application for a minimum funding waiver shall have been filed; (C) a notice of intent to terminate such plan pursuant to Section 4041(a)(2) of ERISA shall have been issued; (D) a lien under Section 303(k) of ERISA shall be imposed; (E) the PBGC shall have instituted proceedings to terminate such plan; (F) the PBGC shall have applied to have a trustee appointed to administer such plan pursuant to Section 4042 of ERISA; or (G) any event or condition that constitutes grounds for the termination of, or the appointment of a trustee to administer, such plan pursuant to Section 4042 of ERISA shall have occurred or shall exist, provided that with respect to the event or condition described in Section 4042(a)(4) of ERISA, the PBGC shall have notified a Borrower or any ERISA Affiliate incurs that it has made a determination that such plan should be terminated on such basis; or (ii) with respect to any liability to the PBGC or Multiemployer Plan, a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed shall incur liability as a result of a partial or complete withdrawal liability pursuant to Title IV from such plan or the reorganization, insolvency or termination of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000such plan; and, or any in the case of the following occurs with respect to a Guaranteed Pension Plan: each of (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISAii), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) events or conditions, individually or in the aggregate, reasonably could be expected likely to result in liability of the Borrower to the PBGC or the Plan Borrowers in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension PlanUS$50,000,000; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;or
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(mk) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act Change of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000Control; or
(pl) any person Collateral Document after delivery thereof pursuant to Section 7.01 or group of persons 6.11 shall for any reason (within other than pursuant to the meaning terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 6.15) on the Collateral purported to be covered thereby. Notwithstanding anything to the contrary contained in this Article 8, in the event that OpCo or US Holdings fails to comply with the requirements of Section 13 or 14 6.13, until the expiration of the Securities Exchange Act tenth (10th) day subsequent to the date the certificate calculating such compliance is required to be delivered pursuant to Section 6.04(a) or (b) (the period from such failure to comply to such tenth (10th) day, the “Cure Period”), OpCo or US Holdings shall have the right to receive cash contributions to the capital of 1934OpCo or US Holdings, as amended) shall have acquired beneficial ownership applicable (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuingcollectively, the Agent may“Cure Right”), and upon the request receipt by OpCo or US Holdings, as applicable, of such cash (the “Cure Amount”) pursuant to the exercise by OpCo or US Holdings of such Cure Right compliance with the covenants set forth in Section 6.13 shall be recalculated giving effect to the following pro forma adjustments:
(i) Covenant Cash Flow of OpCo or US Holdings, as applicable, shall be increased, solely for the purpose of measuring compliance with Section 6.13 by an amount equal to the Cure Amount; and
(ii) if, after giving effect to the foregoing recalculations, OpCo or US Holdings, as applicable, shall then be in compliance with the requirements of Section 6.13, OpCo or US Holdings, as applicable, shall be deemed to have satisfied the requirements of Section 6.13 as of the Majority Banks shallrelevant date of determination with the same effect as though there had been no failure to comply therewith at such date, by notice in writing and the applicable breach or default of Section 6.13 that had occurred shall be deemed cured for the purposes of this Agreement. Notwithstanding anything herein to the Borrower declare all amounts owing contrary, (a) in each Measurement Period there shall be at least two fiscal quarters in which the Cure Right is not exercised, (b) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 6.13 as of the relevant date of determination and (c) for the initial Measurement Period with respect to this Credit Agreementwhich such equity cure was made, the Notes and increase in Covenant Cash Flow of OpCo or US Holdings, as applicable, resulting from the other Loan Documents and all Reimbursement Obligations to be, and they exercise of the Cure Right shall thereupon forthwith become, immediately due and payable without presentment, demand, protest be disregarded for purposes of determining the availability or other notice amount of any kindcovenant baskets and, all for the purposes of which determining compliance with any covenants that require pro forma compliance with Section 6.13, shall not result in any pro forma increase in cash or debt reduction except to the extent such proceeds are hereby expressly waived by actually applied to prepay indebtedness. For the Borrower; PROVIDED that avoidance of doubt, the increase in the event Covenant Cash Flow of any Event of Default specified in ss.ss.13.1(g) OpCo or 13.1(h)US Holdings, all such amounts shall become immediately due and payable automatically and without any requirement of notice as applicable, resulting from the Agent or exercise of the Cure Right shall not be disregarded in any Bankperiod subsequent to the initial Measurement Period, for any of the purposes described in clause (c).
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement (NextEra Energy Partners, LP)
Events of Default and Acceleration. If any of the following events ("Events of DefaultEVENTS 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, "DefaultsDEFAULTS") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payablepayable (including, without limitation, under and pursuant to Section 3.2(a) and (b)), whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two three (23) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Sections 8.1, 9 the first sentence of 8.4.1, the first sentence of 8.5, 9.1 - 9.6 or 10;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries (whether in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement) shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed in an aggregate principal amount in excess of $5,000,000 in the aggregate5,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Leases, in an aggregate principal amount in excess of $5,000,000 in the aggregate5,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) sixty days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0005,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided PROVIDED that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 5,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries is obligated to repurchase $5,000,000 or more of receivables of the other Transaction Parties shall be enjoinedtype described in clause (g) of the definition of "Indebtedness" hereof, restrained whether sold under a purchase facility or otherwise, or a termination event occurs in connection with any way prevented by the order of such sale or with respect to any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;facility; or
(m) there a Change of Control shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(gSections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants covenant contained in ss.8, 9 Section 7.14 or 10Section 7.15;
(d) the Borrower shall fail to comply with any covenant contained in Section 9, and such failure shall continue for 30 days after written notice thereof shall have been given to the Borrower by the Agent;
(e) any of the Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere above in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the AgentSection 12);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) any of the Borrower Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) any of the Borrower Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the General Partners, the Guarantors or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five (45) 60 days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) 60 days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, the General Partners, the Guarantors or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,0001,000,000.00;
(jl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto Borrower, the General Partners, the Guarantors or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the General Partners, the Guarantors or any sale, transfer or other disposition of the assets of any of the Borrower, the General Partners, the Guarantors other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrower, the General Partners or the Guarantors or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrower or any ERISA Affiliate incurs any liability a Guarantor to perform each and every one of its obligations under and by virtue of the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or Loan Documents;
(o) any of the following occurs Borrower, the General Partners or the Guarantors shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person;
(p) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, the General Partners, the Guarantors or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lq) any of the Borrower Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall notify the Agent or any of the other Transaction Parties Banks of such Guarantor's intention to attempt to cancel or terminate the Guaranty, or shall be enjoinedfail to observe or comply with any term, restrained covenant, condition or in any way prevented by agreement under the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) daysGuaranty;
(mr) there shall occur any strikeDon R. Daseke, lockoutMarshaxx X. Xxxxxxx, labor dispute, embargo, condemnation, act of God Xxxx X. Xxxxxxxxx xnd Xxxxx X. Xxxxxxxi shaxx xx xxx xxxxxxxte own directly or public enemy, or other casualty, which in any such case causes, for more indirectly less than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty five percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (1005.0%) of the issued and outstanding shares of the capital stock of Hadco Santa Clarx Walden;
(on s) Xxx X. Daseke shall cxxxx xx xx xxe Chairman and Chief Executive Officer of, or Marshall B. Edwards sxxxx xxxxx xx xx xxe President and Chief Acquisitions Officer of, or Mark S. Dillinger shaxx xxxxx xx xx xxe Chief Financial Officer of, or Steve T. Lamberti shaxx xxxxx xx xx xxe Chief Operating Officer of, Walden, and a fully diluted basis)competexx xxx experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld; or
(t) any Event of Default as defined in any of the other Loan Documents, shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSection 12.1(h), Section 12.1(i) or 13.1(hSection 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks or the Agent. The Borrower and any other Person shall be entitled to conclusively rely on a statement from the Agent or any Bankthat it has the authority to act for and bind the Banks pursuant to this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the any Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the any Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, Loans or fees or other sums due amounts payable hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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, and such failure shall continue for five (5) days after written notice of such failure has been given to a Borrower by the Administrative Agent;
(c) the AMERICAS/2023306744.4
(d) any Borrower shall fail to comply with perform or observe any of its covenants contained in ss.8Sections 6.3.1, 9 6.4.1, 7 or 108;
(de) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 11) for twenty thirty (2030) days after written notice of sucH such failure has been given to the such Borrower by the Administrative Agent, provided, that a failure to perform or observe the terms, covenants and agreements set forth in Section 6.2, Section 6.3.3, Section 6.7 or Section 6.9.1 that continues for more than ten (10) days (regardless of whether notice of such failure is given to such Borrower) shall constitute an Event of Default hereunder;
(ef) any representation or warranty of the any Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or Agreement, any of the other Loan Documents Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(fg) failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries, having a principal amount (or (x) in the other Transaction Parties shall fail case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay at maturitythe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or (z) in the case of a Synthetic Lease Obligation, the amount of Attributable Indebtedness with respect thereto), in any one case, of $100,000,000 or more, and such failure to make a payment of principal or interest, or within any applicable period a default, event of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregatedefault, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other event shall continue for such period of time as would permit (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereofsuch Indebtedness or terminate such Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(gh) 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the other Transaction Parties effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(i) the Company, Alliance Distributors, the General Partner, Xxxxxxx Xxxxxxxxx or any Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the Borrower Company, Alliance Distributors, the General Partner, Xxxxxxx Xxxxxxxxx or any of the other Transaction Parties Material Subsidiary or of any substantial part of the assets of the Borrower Company, Alliance Distributors, (j) 58 AMERICAS/2023306744.4 the General Partner, Xxxxxxx Xxxxxxxxx or any of the other Transaction Parties Material Subsidiary, or shall commence any case or other proceeding Proceeding relating to the Borrower Company, Alliance Distributors, the General Partner, Xxxxxxx Xxxxxxxxx or any of the other Transaction Parties Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, 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 Proceeding shall be commenced against the Borrower Company, Alliance Distributors, the General Partner, Xxxxxxx Xxxxxxxxx or any of the other Transaction Parties Material Subsidiary and the Borrower or any of the other Transaction Parties such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Events of Default and Acceleration. If any of the following events Of Maturity: PAYEE ---------------------------------------------- MAY, WITHOUT NOTICE OR DEMAND ("Events of Default" or, if the giving of notice except as otherwise required by statute or otherwise specifically provided in this Note or the lapse of time or both is requiredPledge Agreement), then, prior to such notice or lapse of time, "Defaults") shall occurACCELERATE THE MATURITY OF THIS NOTE AND DECLARE THE ENTIRE UNPAID PRINCIPAL BALANCE AT ONCE DUE AND PAYABLE IF:
(ai) There is default by Issuer in the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect performance of any Capitalized Leasescovenant, which obligations exceed $5,000,000 in the aggregatecondition, or fail to observe or perform any material term, covenant or agreement contained in this Note or the Pledge Agreement, including any agreement by which it is bound (excludinginstrument securing the payment of this Note, however, any and such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, default continues for such a period of time as would permit thirty (assuming the giving of appropriate 30) days following written notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofIssuer specifying such default;
(gii) the Borrower or any of the other Transaction Parties shall make if Issuer makes an assignment for the benefit of creditors, or admit in writing its inability to pay petitions or generally fail to pay its debts as they mature or become due, or shall petition or apply applies for the appointment of a trustee liquidator, receiver or other custodian, liquidator custodian (or receiver similar official) of the Borrower or any of the other Transaction Parties it or of any substantial part of its assets, or if Issuer commences any proceeding or case relating to it under the assets of the Borrower Bankruptcy Code or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 takes any action to authorize or in furtherance of any of the foregoing, ; or
(iii) if any petition or application of the type described in subparagraph (c) immediately above is filed or if any such petition proceeding or application shall be filed or any such case or other proceeding shall be described in subparagraph (c) is commenced against the Borrower Issuer and is not dismissed within sixty (60) days, or any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate if Issuer indicates its approval thereof, consent consents thereto or acquiescence therein acquiesces therein, or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or if an order is entered appointing any such trustee, custodian, liquidator or receiver or custodian (or similar official), or adjudicating the Borrower or any of the other Transaction Parties Issuer bankrupt or insolvent, or approving a petition in any such case or other proceeding, or if a decree or order for relief is entered in respect of the Borrower or any of the other Transaction Parties Issuer in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholders, or any court Bankruptcy Code or any other governmental bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or regulatory authority liquidation 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 Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be enjoined, restrained or in any way prevented by the order similar law of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bankjurisdiction.
Appears in 2 contracts
Samples: Restricted Stock Agreement (Encore Medical Corp), Restricted Stock Agreement (Encore Medical Corp)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10§9.1 and such failure shall continue for fifteen (15) calendar days after written notice thereof shall have been given to the Borrower by the Agent;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained in §9.2 -§9.12;
(e) the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account of any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve (i) Recourse Indebtedness in excess of $10,000,000.00 or (ii) Non-Recourse Indebtedness in excess of $50,000,000.00 individually or in excess of $75,000,000.00 in the aggregate;
(gh) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty fifteen (3015) daysdays during any calendar year, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against (x) the Borrower or any Guarantor that, either individually or in the aggregate, exceed $25,000,000.00 in any calendar year or (y) any Subsidiary of the other Transaction Parties Borrower that is not a Subsidiary Guarantor that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00025,000,000.00 in any calendar year;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents; (n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable (including, without limitation, under and pursuant to Section 3.2(a) and (b)) within five (5) 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two five (25) Business Days after the day on which 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) the Borrower or any of its Subsidiaries shall fail to pay any fees or other sums due hereunder or under any of the other Loan Documents, within five (5) 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; provided, that with respect to any fees or other sums due hereunder or under any of the other Loan Documents for which an invoice has been provided by the Administrative Agent but has not been received by the Borrower, the Borrower or any of its Subsidiaries shall fail to pay such fees or other sums within five (5) Business Days after notice of such failure has been given to the Borrower by the Administrative Agent;
(d) the Borrower shall fail to comply with any of its covenants contained in ss.8Section 8.1, 9 the first sentence of Section 8.4.1, the first sentence of Section 8.5, Sections 9.1 through 9.6 or Section 10;
(de) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(ef) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries (whether in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement) shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed in an aggregate principal amount in excess of $5,000,000 in the aggregate25,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Leases, in an aggregate principal amount in excess of $5,000,000 in the aggregate25,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gh) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) sixty days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,00025,000,000;
(jk) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 25,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,00025,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 25,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of its Subsidiaries is obligated to repurchase $25,000,000 or more of receivables of the other Transaction Parties shall be enjoinedtype described in clause (g) of the definition of “Indebtedness” hereof, restrained whether sold under a purchase facility 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemyotherwise, or other casualty, which a termination event occurs in connection with any such case causes, for more than fifteen (15) consecutive days, the cessation sale or substantial curtailment of revenue producing activities at with respect to any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;facility; or
(n) there a Change of Control shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 13.1(h) or 13.1(h13.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Events of Default and Acceleration. If Upon the occurrence and at any time during the continuation of any of the following events or occurrences ("Events each an “Event 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:”):
(a) the Borrower shall fail to pay any principal portion of the Loans principal amounts due hereunder (the “Loan”) or any Reimbursement Obligation when interest thereon shall not be paid, or shall not have been satisfied as provided herein, by 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 paymentapplicable Scheduled Maturity Date;
(b) (i) there shall have occurred and be continuing any material breach by the Borrower or any in respect of its obligations to the other Transaction Parties shall fail to pay any interest on Lender under that certain 4G MVNO Agreement dated as of November 28, 2008, among the LoansBorrower, the commitment feeLender, any Letter of Credit FeeComcast MVNO II, the Agent's feeLLC, or other sums due hereunder or under any of the other Loan DocumentsTWC Wireless, within two (2) Business Days after the day on which LLC, and BHN Spectrum Investment, as the same has heretofore and may hereafter be amended, restated, supplemented or otherwise modified from time to time (the “4G MVNO Agreement”), including without limitation, as amended by that certain November 2011 Clearwire/Sprint Amendment to the 4G MVNO Agreement dated as of November , 2011, between the Borrower and the Lender (the “4G MVNO Sprint/Clearwire Amendment”)); or (ii) the 4G MVNO Agreement as between the Borrower and the Lender shall become due and payable, whether at the stated date of maturity have been terminated or any accelerated date of maturity or cancelled at any other date fixed for payment;time prior to the Second Scheduled Maturity Date; or
(ci) the Borrower shall fail commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to comply bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or 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 (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its covenants contained in ss.8assets, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an a general assignment for the benefit of its creditors, ; or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 (ii) there shall be commenced against the Borrower or any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereofcase, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties bankrupt or insolvent, or approving a petition in any such case proceeding or other proceeding, or action of a decree or nature referred to in clause (i) above that (x) results in the entry of an order for relief is entered in respect of the Borrower or any such adjudication or appointment or (y) remains undismissed or undischarged for a period of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) 60 days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) there shall be commenced against the institution by Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the PBGC entry of proceedings to terminate an order for any such Plan;
relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (liv) the Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the other Transaction Parties shall be enjoinedacts set forth in clause (i), 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemyii), or other casualty, which in any such case causes, for more than fifteen (15iii) consecutive days, the cessation above; or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(ov) the Borrower shall generally not, or any of the other Transaction Parties shall be indicted for a state or federal crimeunable to, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesadmit in writing its inability to, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, pay its debts 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)they become due; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 (A) if such event of any is an Event of Default specified in ss.ss.13.1(gclause (ii) of paragraph (b) above, or in clause (i) or 13.1(h)(ii) of paragraph (c) above, the Loan (with accrued interest thereon) and all such other amounts owing under this Promissory Note shall automatically and immediately become immediately due and payable automatically in full, without further action on the part of the Lender, and without (B) if such event is any requirement other Event of notice from Default, the Agent or any BankLender may declare the Loan (with accrued interest thereon) and all other amounts owing under this Promissory Note to be due and payable forthwith, whereupon the same shall immediately become due and payable in full.
Appears in 2 contracts
Samples: Commitment Agreement, Commitment Agreement (Clearwire Corp /DE)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10§9.1 and such failure shall continue for fifteen (15) calendar days after written notice thereof shall have been given to the Borrower by the Agent;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9;
(e) the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve Non-Recourse Indebtedness in excess of $20,000,000 individually or in excess of $30,000,000.00 in the aggregate;
(gh) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty fifteen (3015) daysdays during any calendar year, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against (x) the Borrower or any Guarantor that, either individually or in the aggregate, exceed $5,000,000.00 in any calendar year or (y) any Subsidiary of the other Transaction Parties Borrower that is not a Subsidiary Guarantor that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,0005,000,000.00 in any calendar year;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lo) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be enjoinedindicted for a federal crime, restrained or in a punishment for which could include the forfeiture of (i) 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility assets of the Borrower or any of their respective Subsidiaries which in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would good faith judgment of the Majority Lenders could reasonably be expected to have a material adverse effect on Material Adverse Effect, or (ii) the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(np) there shall occur any Guarantor denies that it has any liability or obligation under the loss, suspension Guaranty or revocation ofany other Loan Document, or failure shall notify the Agent or any of the Lenders of such Guarantor’s intention to renewattempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any license term, covenant, condition or permit now held agreement under any Guaranty or hereafter acquired by any other Loan Document;
(q) the Borrower or any Subsidiary Guarantor abandons all or a portion (other than de minimis portion) of the Mortgaged Property;
(r) any Mortgaged Property shall be taken on execution or other process of law (other than by eminent domain) in any action against Borrower or any Subsidiary Guarantor;
(s) the holder of any lien or security interest on the Mortgaged Property (without implying the consent of the Agent or the Lenders to the existence or creation of any such lien or security interest) whether superior or subordinate to the Mortgage or any of the other Transaction Parties if Loan Documents, declares a default and such lossdefault is not cured within the applicable grace or cure period set forth in the applicable document (subject, suspensionto the extent applicable, revocation to Borrower’s right to contest pursuant to §7.8) or failure to renew would have a material adverse effect on such holder institutes foreclosure or other proceedings for the business or financial condition enforcement of the Borrower and the other Transaction Parties, considered as a wholeits remedies thereunder;
(ot) the Borrower Mortgaged Property, or any part thereof, is subjected to actual or threatened waste or to removal, demolition or material alteration so that the value of the Mortgaged Property is materially diminished thereby, and the Agent in good faith determines that the Lenders are not adequately protected from any loss, damage or risk associated therewith;
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not a Mortgaged Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Control shall occur; or
(y) an Event of Default under any of the other Transaction Parties Loan Documents shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallLenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower Borrowers shall fail to comply with any of its covenants covenant contained in ss.8, 9 Section 7.14 or 10Section 7.15;
(d) the Borrower Borrowers shall fail to comply with any covenant contained in Section 9, and such failure shall continue for 30 days after written notice thereof shall have been given to the Borrowers by the Agent;
(e) any of the Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere above in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the AgentSection 12);
(ef) any representation or warranty made by or on behalf of the Borrower Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) any of the Borrower Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) any of the Borrower Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers, the General Partner, the Guarantors or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five (45) 60 days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) 60 days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrowers, the General Partner, the Guarantors or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,0001,000,000.00;
(jl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto Borrowers, the General Partner, the Guarantors or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower Borrowers, the General Partner or the Guarantors or any ERISA Affiliate incurs sale, transfer or other disposition of the assets of any liability to of the PBGC Borrowers, the General Partner or a Guaranteed Pension Plan pursuant to Title IV the Guarantors other than as permitted under the terms of ERISA in an aggregate amount exceeding $2,000,000; this Agreement or the Borrower other Loan Documents;
(n) any suit or proceeding shall be filed against any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000the Borrowers, the General Partner or the Guarantors or any of their respective assets which in the following occurs good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrowers or a Guarantor to perform each and every one of their respective obligations under and by virtue of the Loan Documents;
(o) any of the Borrowers, the General Partner or the Guarantors shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person;
(p) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrowers, the General Partner, the Guarantors or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lq) any of the Borrower Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall notify the Agent or any of the other Transaction Parties shall be enjoined, restrained Banks of such Guarantor's intention to attempt to cancel or in any way prevented by terminate the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemyGuaranty, or other casualtyshall fail to observe or comply with any term, which in any such case causescovenant, for more than fifteen (15) consecutive days, condition or agreement under the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeGuaranty;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Term Loan Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the : any Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the ; any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment facility fee, the Bankers' Acceptance Fees, any Letter of Credit Fee, the Agent's feeAgents' fees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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;
, and such failure shall continue unremedied for a period of five (c5) the Borrower days; any Obligor shall fail to comply with any of its covenants contained in ss.8(i) ss.10, 9 or (ii) ss.9 and such default shall continue unremedied for a period of ten (10) days after notice of such default is given to the Borrowers by the Administrative Agent or any Lender;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.114.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower such Obligor by the Administrative Agent;
(e) ; any representation or warranty of the Borrower or any of the other Transaction Parties Obligor in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower ; The Guarantor or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of gracegrace (not to exceed thirty (30) days), (i) any Indebtedness with an outstanding principal amount in excess of $1,000,000, (ii) any Indebtedness under the Licensed Shoe Debt, or (iii) any obligations for borrowed money or credit received or in respect of any Capitalized Leasesoperating leases where the remaining lease payments (under one or more operating leases) would, which obligations exceed $5,000,000 in the aggregate, be in excess of $1,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money any such Indebtedness described in subclauses (i) or credit received (ii) of this clause (f), or any such operating lease described in respect subclause (iii) of any Capitalized Leases exceeding $5,000,000 in the aggregate, this clause (f) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) thereof or otherwise act to enforce any rights and remedies thereunder, unless, prior to termination of the Borrower Commitments and/or acceleration pursuant to this ss.14.1, the holder or holders of such obligations shall have, in writing, waived such default and a copy of such waiver of default shall have been furnished to the Administrative Agent; the Guarantor or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Person or shall commence any case or other proceeding relating to the Borrower Guarantor or any of the other Transaction Parties 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 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 Guarantor or any of the other Transaction Parties its Subsidiaries and the Borrower Guarantor or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or thereto, acquiescence therein or such petition or application shall not have been dismissed within forty-five otherwise remain undismissed for a period of sixty (4560) days following the filing thereof;
(h) days; a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Guarantor or any of the other Transaction Parties 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 in respect of the Borrower Guarantor or any of the other Transaction Parties its Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
constituted (iwhich order is not dismissed within sixty (60) days after the entry thereof); there shall remain in force, undischarged, unsatisfied and unstayedunsatisfied, unstayed for more than thirty sixty (3060) days, whether or not consecutive, any final judgment (unless bonded pending appeal) against the Borrower or any of the other Transaction Parties Apparel Obligors that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in $500,000 the aggregate $5,000,000;
aggregate; the holders of all or any part of Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part; provided, however, that a conversion of the Subordinated Notes into equity interests in the Guarantor (jpursuant to the terms of the indenture under which the Subordinated Notes were issued) shall not constitute a prepayment, redemption or repurchase of such Subordinated Notes; if any of the Loan Documents Documents, including without limitation, the guaranty provisions contained within the Credit Agreement, shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower Guarantor or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Obligors or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) ; the Borrower or any of the other Transaction Parties Borrowers shall be 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 order shall continue in effect for more than thirty (30) days;
(m) ; there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen sixty (1560) consecutive days, the complete cessation or substantial curtailment of revenue producing activities at any facility a material number of facilities of the Borrower Guarantor or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have has a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered Borrowers taken as a whole;
(n) there shall occur ; except as permitted under ss.9.5, the lossGuarantor shall, suspension at any time, legally or revocation ofbeneficially own directly or indirectly, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any less than one hundred percent of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower issued and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture outstanding capital stock of any assets of the Borrower Borrower, on a fully diluted basis; or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934except as permitted under ss.9.5, 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower Casual Male shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the issued and outstanding capital stock of Hadco Santa Clarx (each of TCM and TCMB&T, on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gss.ss.14.1(g), 14.1(h) or 13.1(h14.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender; provided further that in the event of any Event of Default specified in ss.ss.14.1(g), 14.1(h) or 14.1(k), the Total Commitments of the Lenders shall immediately terminate and all such amounts owing shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or the Lenders. No remedy herein conferred upon the Lenders 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.
Appears in 2 contracts
Samples: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of any of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's feeCredit, or any other fees or sums due hereunder or under any of the other Loan Documents, within two ten (210) Business Days days after the day on which 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) the Borrower or the Trust shall fail to comply with any covenant contained in §9, and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent; provided, however, that in the event that Borrower or the Trust shall fail to comply with the covenant set forth in §9.5, then the same shall not constitute a Default hereunder in the event that Borrower prepays the Loans or provides additional Mortgaged Property in accordance with the terms of this Agreement in an amount sufficient such that Borrower and the Trust would be fully in compliance with the covenant set forth in §9.5 within ninety (90) days of the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance, (ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of written notice of such noncompliance from Agent; provided further that within thirty (30) days of the earlier to occur of the events described in clauses (i)-(iii) above of this §12.1(c), Borrower shall deliver to Agent a description of its covenants contained proposed plan to cure such noncompliance under §9.5 (although the failure to follow such plan shall not constitute an independent Default under this §12.1(c)); and provided further, that during any period in ss.8which Borrower or the Trust shall fail to be in compliance of any covenant in §9.5, 9 then the Banks shall have no obligation to make Loans or 10to issue Letters of Credit;
(d) the Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other material term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) §12), and such failure shall continue for twenty thirty (2030) days after written notice of sucH failure has thereof shall have been given to the Borrower by the Agent; provided, however, that in the event that such failure shall be a failure to comply with the terms of §8.7(a) or (b), the Borrower shall be afforded a period of one (1) fiscal quarter to cure such failure provided that the Distribution which caused such failure was historically consistent with prior dividends;
(e) any representation or warranty made by or on behalf of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases exceeding $5,000,000 in the aggregate, for Derivatives Contract)for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment or purchase thereof, provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(g) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,00010,000,000.00;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or Borrower, any Guarantor, any of the other Transaction Parties party thereto their respective Subsidiaries or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Trust or any of their respective Subsidiaries or any sale, transfer or other disposition of the assets of the Borrower, the Trust or any of their respective Subsidiaries other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following occurs the filing or commencement thereof;
(n) the Borrower, any Guarantor, any of their respective Subsidiaries or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries, including the Real Estate;
(o) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; Plan or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lp) a Change of Control shall occur;
(q) Xxxxxx Xxxxxxxxxx shall cease to be active on a daily basis in the management of the Trust and the Borrower or and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default (as defined in any of the other Transaction Parties Loan Documents) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000occur; or
(ps) The Borrower and the Guarantor and any person of their respective Subsidiaries shall fail to pay at maturity, 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any applicable period of twelve consecutive calendar monthsgrace, individuals who were directors of the Borrower on the first day of any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period shall cease of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to constitute accelerate the maturity thereof or require a majority of the board of directors of the Borrower redemption, retirement, prepayment, purchase or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)defeasance thereof; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower (in addition to the rights afforded under §12.3) (i) declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 , and (ii) require the Borrower to immediately cash collateralize all outstanding Letters of Credit or obtain replacement letters of credit for such Letters of Credit, all in a manner satisfactory to the Issuing Bank and the Majority Banks, or alternatively upon demand by Agent, the Issuing Bank or the Majority Revolving Credit Banks in their absolute and sole discretion, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Banks will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit, the proceeds of which will be pledged to and held by Agent as security for any amounts that in become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations or Hedge Obligations and the Banks have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower. In the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Banks or any Bankthe Agent.
Appears in 2 contracts
Samples: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the any Borrower shall fail to pay any principal or interest of the Loans any Loan or any Reimbursement Obligation when the same shall become due and payablepayable (or within three (3) days thereafter), whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the any Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Fees or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, Documents or any Hedging Agreement (other than an amount referred to in clause (a) of this Section 13.1) within two five (25) Business Days after the day on which 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) the any Borrower shall fail to comply with any of its covenants contained in ss.8Sections 8.3, 9 8.4.1, the first sentence of Section 8.5, Sections 8.11 or 108.13, or Article 10 of this Credit Agreement;
(d) the any Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty forty-five (2045) days after written the earlier of (i) the date that the Administrative Agent gives notice of sucH such failure has been given to such Borrower (with a copy to the Borrowing Administrators) and (ii) the date that a senior officer or (with respect to Lionbridge BV) managing director of such Borrower by the Agentobtains actual knowledge of such failure;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Any Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Consolidated Capitalized Leases, which obligations exceed in each case, having an outstanding principal balance in excess of $5,000,000 in the aggregate1,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Consolidated Capitalized Leases exceeding Leases, in each case, having an outstanding principal balance in excess of $5,000,000 in the aggregate1,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g1) the Borrower or any of the other Transaction Parties Obligor shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due; or (2) any Obligor shall make an assignment for the benefit of creditors, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Obligor or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Obligor; or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Obligor 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 (3) 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 the other Transaction Parties Obligor and the Borrower or any of the other Transaction Parties such Obligor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five ninety (4590) days following the filing thereof; provided, that with respect to any action taken or event occurring under Dutch law with respect to an Obligor, only bankruptcy (faillissement), suspension of payment (surseance van betaling), emergency proceedings (noodregeling), or any other procedure the effect of which is that the Obligor to which it applies loses the free management or ability to dispose of its property (irrespective of whether that procedure is provisional or final), under Dutch law shall qualify as an action or event referred to in this paragraph (g) for purposes of the Loan Documents;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties Obligor 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 or any of the other Transaction Parties Obligor in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) forty-five consecutive days, any final judgment against any Borrower for the Borrower or any payment of the other Transaction Parties thatmoney, together with other outstanding final judgmentsfinal, undischarged, unsatisfied and unstayed judgments against the Borrower or any Borrowers, in excess of the other Transaction Parties exceeds $1,000,000 in the aggregate $5,000,000aggregate, unless the same is adequately bonded or is being contested by appropriate proceedings properly instituted and diligently conducted;
(j) the holders of all or any part of any Subordinated Debt shall accelerate the maturity of all or any part of such Subordinated Debt, or any Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase any Subordinated Debt in whole or in part shall have been made;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, or the Administrative Agent’s Liens in a substantial portion of the Collateral shall cease to be perfected or any Pledge Document is deemed ineffective, or shall cease to have the priority contemplated by this Credit Agreement and the Security Documents, in each case otherwise than in accordance with the terms hereof and thereof or with the express prior written agreement, consent or approval of the Banks, Lenders; 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 or on behalf of the Borrower Obligors or any of the other Transaction Parties 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 determination that, or 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;
(kl) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower 1,000,000, or either Obligor or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower Obligors or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the other Transaction Parties Obligor shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty forty-five (3045) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the any material damage to, or loss, suspension theft or revocation destruction of, or failure any Collateral, which could reasonably be expected to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Material Adverse Effect; then, and in any such event, so long as the same may be continuing,
(1) with the consent of the Required Lenders, the Administrative Agent may, and or upon the request of the Majority Banks Required Lenders, the Administrative Agent shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreementthe principal of and interest on the Loans, the Notes and the Reimbursement Obligations at the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this Credit Agreement or any of the other Loan Documents (including, without limitation, all Reimbursement Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented or shall be entitled to present the documents required thereunder) and all Reimbursement other Obligations (other than Obligations in respect of any Hedging Agreements), to bebe forthwith due and payable, and they whereupon the same shall thereupon forthwith become, immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by waived, anything in this Credit Agreement or the Borrowerother Loan Documents to the contrary notwithstanding; PROVIDED provided, that in upon the event occurrence of any an Event of Default specified in ss.ss.13.1(gSection 13.1(g) or 13.1(h), all such amounts Obligations (other than Obligations in respect of any Hedging Agreements) shall automatically become immediately due and payable automatically without presentment, demand, protest or other notice of any kind, all of which are expressly waived, anything in this Credit Agreement or in any other Loan Document to the contrary notwithstanding;
(2) with respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration of payment of the Loans, Notes and without any requirement of Reimbursement Obligations pursuant to the preceding paragraph, within three Business Days after the Domestic Borrowing Administrator receives notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this paragraph, the Domestic Borrowers shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to reimburse the relevant LC Issuers for LC Disbursements for which they have not been reimbursed, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay the other Obligations. After all such Letters of Credit shall have expired or been fully drawn upon, the Reimbursement Obligations shall have been satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account, plus any Bankaccrued interest thereon or realized profits with respect thereto, shall be returned to the Domestic Borrowing Administrator for account of the Domestic Borrowers within three Business Days after such payment in full; and
(3) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrowers exercise on behalf of the Lenders all of its other rights and remedies under this Credit Agreement, the other Loan Documents and applicable law, in order to satisfy all of the Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
Events of Default and Acceleration. If 8.1 The occurrence of any one or more of the following shall constitute an Event of Default hereunder:
8.1.1 Failure to make any payment of any principal, interest or other charges in respect of any of the following events Obligations within ten ("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"10) shall occur:
(a) the Borrower shall fail to pay any principal days of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which the same shall become due and payable, whether at be due.
8.1.2 Default in the stated date observance or performance of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained of Borrower herein set forth or set forth in any of the other Loan and Security Documents or in any agreement, note or instrument heretofore, now or hereafter executed by Borrower in favor of Bank (other than those specified elsewhere set forth in this ss.
13.1Section 8.1) for twenty which is not cured within thirty (2030) days after of written notice of sucH failure has been given from Bank;
8.1.3 If any representation, warranty, certificate, schedule or other information made or furnished by Borrower herein or pursuant hereto or pursuant to the Borrower by the Agent;
(e) any representation Loan and Security Documents is or warranty of the Borrower shall be incorrect, untrue or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false misleading in any material respect upon at the date when time made or given;
8.1.4 Default in the performance of any material obligations of Borrower to any third party; unless the Borrower is disputing such obligation in good faith and has set aside adequate reserves therefor;
8.1.5 Any change for any reason whatsoever in the majority ownership or control of Borrower other than as expressly permitted hereunder;
8.1.6 Loss, theft, damage or destruction of any portion of Property of Borrower for which there is either no insurance coverage or for which, in the opinion of Bank, there is insufficient insurance coverage or the making of any levy, seizure or attachment upon any portion of the property of Borrower, provided that Borrower shall not be deemed to have been made be in default of this provision if Borrower has maintained or repeatedcaused to be maintained the insurance coverage required by Section 6.2 and Section 6.3 hereof;
(f) the 8.1.7 Insolvency of Borrower or any failure of the other Transaction Parties shall fail Borrower generally to pay at maturity, its debts as they come due or within any applicable period if a creditors' committee is appointed for the business of grace, any obligations for borrowed money Borrower; or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an Bxxxxxxx makes a general assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply an Order for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order Relief is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating with respect to Borrower under the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted, or if a case in bankruptcy or a petition for reorganization or to effect a plan or arrangement with creditors is filed by or against Borrower; or if Borrower applies for or permits the appointment of a receiver, trustee, custodian or liquidator for any of its property or assets, or if any such receiver, trustee, custodian or liquidator is appointed for any of such property or assets; and, in the case of any one of the above actions or proceedings commenced against Borrower, such action or proceeding is not dismissed within sixty (60) days;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower 8.1.8 If a proceeding is filed or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf against Borrower for its dissolution or liquidation and in the event of a proceeding commenced against Borrower the same remains undismissed or unstayed for a period of sixty (60) days; or if Borrower voluntarily or any of the other Transaction Parties party thereto involuntarily dissolves or any of their respective stockholdersis dissolved, terminates 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofterminated;
(k) the 8.1.9 If Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be enjoined, restrained or in any way prevented by the a final, non-appealable Court or Administrative order of any court or any administrative or regulatory agency from conducting all or any material part of its business affairs;
8.1.10 The occurrence of an Event of Default under any one or more of the Loan and such order Security Documents or under any other document, instrument or agreement now or hereafter evidencing, securing or executed in connection with any indebtedness or obligation of Borrower to the Bank;
8.1.11 The entry of a final judgment for the payment of money in excess of an aggregate of One Hundred Thousand and 00/100 ($100,000.00) Dollars shall continue in effect be rendered against the Borrower, and the same shall remain undischarged for more than a period of thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation during which execution shall not be effectively stayed;
8.1.12 The occurrence of any attachment of any deposits or substantial curtailment of revenue producing activities at any facility other property of the Borrower in the hands or any possession of the Bank, or the occurrence of any attachment of any other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition property of the Borrower in an amount exceeding One Hundred Thousand and 00/100 ($100,000.00) Dollars which shall not be discharged within thirty (30) days of the other Transaction Parties, considered as a wholedate of such attachment;
(n) there shall occur the loss, suspension or revocation of, or failure 8.1.13 Default with respect to renew, any license or permit now held or hereafter acquired by the Borrower or any evidence of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition indebtedness of the Borrower and (other than to the other Transaction PartiesBank) relating to the Property, considered as a whole;
(o) if the Borrower effect of such default is to accelerate the maturity of such indebtedness or any of to permit the other Transaction Parties shall be indicted for a state or federal crimeholder thereof to cause such indebtedness to become due prior to the stated maturity thereof, or if any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets indebtedness of the Borrower (other than to the Bank) is not paid when due and payable, whether at the due date thereof or a date fixed for prepayment, whether by acceleration or otherwise;
8.1.14 The Borrower attempts to assign its rights under this Agreement or any interest herein, or if the Property is conveyed or encumbered contrary to the provisions of this Agreement;
8.1.15 Any "Event of Default" as defined in the Property Ground Lease (in each case only to the extent that such other Transaction Party having a fair market value in excess Event of $1,000,000Default is not cured by any leasehold mortgagee as permitted under the Property Ground Lease) or termination of the Property Ground Lease; or
(p) 8.1.16 The Property is materially damaged or destroyed by fire or other casualty or cause, and as a result thereof, Tenant has exercised any person contractual right it may have to terminate the Property Ground Lease.
8.2 If any Event of Default shall occur, then 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any timetime thereafter, legally or beneficially own less than one hundred percent (100%) of Bank may declare the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, be immediately due and payable payable, without presentmentnotice, protest, presentment or 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankBxxxxxxx.
Appears in 2 contracts
Samples: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants covenant contained in ss.8, 9 Section 7.15 or 10Section 7.16;
(d) the Borrower shall fail to comply with any covenant contained in Article 9, and such failure shall continue for 45 days after written notice thereof shall have been given to the Borrower by the Agent;
(e) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere above in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the AgentSection 12);
(ef) any representation or warranty of the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leasesother Indebtedness, which obligations exceed $5,000,000 in including, without limitation, the aggregatePrudential Loan, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor, (A) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (B) shall commence any case or other proceeding relating to the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (C) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any such of its Subsidiaries or the Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five (45) 60 days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Subsidiaries or the other Transaction Parties 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 or any of its Subsidiaries or the other Transaction Parties Guarantor, in each case of the foregoing in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) 60 days, whether or not consecutive, any uninsured final judgment against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor exceeds in the aggregate $5,000,0005,000,000.00;
(jl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto Guarantor or any of their respective stockholdersits holders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or thereof in any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with material respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan as determined by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) daysMajority Banks;
(m) there shall occur any strikedissolution, lockouttermination, labor disputepartial or complete liquidation, embargo, condemnation, act of God merger or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility consolidation of the Borrower or the Guarantor, or any sale, transfer or other disposition of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition assets of the Borrower and or the Guarantor, other than as permitted under the terms of this Agreement or the other Transaction Parties, considered as a wholeLoan Documents;
(n) there any suit or proceeding shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by be filed against the Borrower or the Guarantor or any of their respective assets which in the other Transaction Parties good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if such lossadversely determined, suspension, revocation or failure to renew would have a material materially adverse effect affect on the business or financial condition ability of the Borrower or the Guarantor to perform each and every one of its obligations under and by virtue of the other Transaction Parties, considered as a wholeLoan Documents;
(o) the Borrower or any of the other Transaction Parties Guarantor, shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.Guarantor;
Appears in 2 contracts
Samples: Revolving Credit Agreement (Meridian Industrial Trust Inc), Revolving Credit Agreement (Meridian Industrial Trust Inc)
Events of Default and Acceleration. If any Any of the following events ("Events shall constitute an “Event 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 occura “Default”:
(a) the any Borrower shall fail to pay any principal of the its Loans or any Borrower shall fail to pay any Reimbursement Obligation when 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;
(b) the any Borrower or any of the other Transaction Parties shall fail to pay (i) any interest on the its Loans, the commitment feeany Commitment Fee, any Letter of Credit Fee, or any fees due under the Agent's feeFee Letter, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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, and such failure shall continue for three (3) days; or (ii) any other sums due hereunder or under any of the other Loan Documents, when 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, and such failure shall continue for thirty (30) days;
(c) any of the Borrower Borrowers or any of their Restricted Subsidiaries shall fail to comply with any of its the covenants contained in ss.8§§9.1, 9 9.5.1, the first sentence of §9.6, 9.12, 9.14, 10 or 1011;
(d) any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§14.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Applicable Borrower by the Administrative Agent;
(e) any representation or warranty of any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedmade;
(f) any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries shall fail to pay at maturitywhen due, or within any applicable period of grace, any obligations obligation in excess of the aggregate amount of $100,000,000, for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc), Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Sections 9.1, 9 or 109.4, 9.6, 9.12, 9.14, 10.1 through 10.6, 10.9 through 10.13, 11 and 29 hereof;
(d) the Borrower shall fail to perform any term, covenant or agreement contained herein (other than those specified in subsections (a), (b) and (c), above) and such failure shall continue for 30 days;
(e) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(ef) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of the other Transaction Parties Borrower, its Subsidiaries, or the General Partner shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount greater than $5,000,000 in the aggregate500,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount greater than $5,000,000 in the aggregate, 500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower or any of the other Transaction Parties Borrower, its Subsidiaries, or the General Partner shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person(s) or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Person's or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties such Person(s) and the Borrower or any of the other Transaction Parties such Person(s) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Borrower, or any of its Subsidiaries, or the other Transaction Parties General Partner 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 or any of the other Transaction Parties such Person(s) in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or Borrower, any of its Subsidiaries, or the other Transaction Parties General Partner that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Person(s) exceeds in the aggregate $5,000,0001,000,000;
(jk) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Agent's security interests, mortgages or liens in 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 accordance with the express terms thereof or with the prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties Xxxxxxx Group 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) could such event in the circumstances occurring would be reasonably likely to constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States of America District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of or a trustee shall have been appointed by such District Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, condemnation or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of or revenue producing activities at any facility or facilities of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business business, assets or condition (financial condition or otherwise) of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(op) the Borrower or any of the other Transaction Parties Xxxxxxx Group shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000250,000;
(q) a "Change of Control" under, and as defined in the Senior Indenture shall have occurred; or
(pr) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or if the Borrower shall, at any time, legally own or beneficially own control less than one hundred percent (100%) of the shares equity or ownership interests of the capital stock each of Hadco Santa Clarx (on its Subsidiaries which is a fully diluted basis)Guarantor; then, and in any such event, so long as the same may be continuing, (x) the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents Documents, and (y) BKB may by notice in writing to the Borrower declare all amounts owing with respect to the Reimbursement Obligations to be, and in either case they shall thereupon forthwith become, 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 ss.ss.13.1(gSections 14.1(h) or 13.1(h14.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Restaurant Co), Revolving Credit Agreement (Perkins Finance Corp)
Events of Default and Acceleration. If any of the following events ("subject to §12.2, “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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether by mandatory prepayment, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when the same shall become due and payable, whether by mandatory prepayment, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with perform any of its covenants term, covenant or agreement contained in ss.8, 9 or 10§9;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.l(f), involves (i) any Recourse Indebtedness singly or in the aggregate totaling in excess of $25,000,000, or (ii) obligations for Non-Recourse Indebtedness singly or in the aggregate totaling in excess of $100,000,000.00;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, monitor, receiver, receiver-manager, or receiver of the Borrower similar official for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law Insolvency Law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if ; provided that the events described in this §12.1(g) as to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator, monitor, receiver, receiver-manager, or similar official of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any Insolvency Law of any jurisdiction, now or hereafter in effect, and any of the other Transaction Parties and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof; provided that the events described in this §12.1(h) as to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator liquidator, receiver, monitor, receiver-manager, or receiver or adjudicating similar official for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws any Insolvency Law; provided that the events described in this §12.1(i) as now to any Subsidiary of the Borrower that is not a Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or hereafter constitutedSubsidiaries that is not a Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), 12.1(h) or 12.1(i) individually exceeds $5,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $15,000,000.00) or in the aggregate exceeds $10,000,000.00 (or, if the Consolidated Tangible Net Worth equals or exceeds $750,000,000.00, $30,000,000.00);
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00035,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement, or to contest or challenge the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs [reserved];
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 35,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole[reserved];
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the other Transaction Parties shall be indicted for a state Lenders of such Guarantor’s intention to attempt to cancel or federal crime, terminate the Guaranty or any civil or criminal action other Loan Document;
(p) [reserved];
(q) [reserved];
(r) REIT shall otherwise have been brought or threatened against the Borrower or fail to comply at any the other Transaction Partiestime with all requirements and Applicable Laws necessary to maintain REIT Status and shall continue to receive REIT Status;
(s) REIT shall fail to comply, a punishment for which in any such case could include the forfeiture of material respect, with any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000SEC reporting requirements; or
(pt) any person or group Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallLenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h)12.1(i) shall occur with respect to the Borrower, REIT or any Subsidiary Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Required Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Revolving Credit Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Term Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, Term Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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, and such failure continues for five (5) days;
(c) the any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of its their respective covenants contained in ss.8Sections 6.01, 9 6.06,6.07, 6.12, 6.14, 6.20 or 106.21;
(d) the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents Document (other than those specified elsewhere in this ss.
13.1Section 9.01) and such failure continues for twenty thirty (2030) days after written notice of sucH failure has been given to the Borrower by the Agentdays;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties Guarantor in this Credit Term Loan Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Term Loan Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) an "Event of Default" shall have occurred and be continuing under the Borrower or any terms of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofCredit Agreement;
(g) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower any Borrower. any Guarantor or any of the other Transaction Parties their respective Subsidiaries or shall commence any case or other proceeding relating to the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries and the Borrower (i) any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition petition, application, case or application other proceeding shall not have been dismissed within forty-five continue undismissed, or unstayed and in effect, for a period of sixty (4560) days following the filing thereofdays; ;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower Loan Documents or any material provision of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksBank any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the any Borrower or any of the other Transaction Parties party thereto its Subsidiaries or any Guarantor or any of their respective stockholdersits Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(kj) the Borrower any "Event of Default" or default (after notice and expiration of any ERISA Affiliate incurs any liability period of grace, to the PBGC or extent provided, and if none is specifically provided, then for a Guaranteed Pension Plan pursuant to Title IV period of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: thirty (i30) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISAdays after notice), as defined or provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be enjoinedLoan Documents, 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)continuing; then, and in any such event, so long as the same may be continuing, the Agent Bank may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower Borrowers, declare all amounts owing with respect to this Credit Term Loan Agreement, the Notes Term Loan Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowereach Borrower and each Guarantor; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gSection 9.01(g) or 13.1(hSection 9.01(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent Bank or any action by the Bank.
Appears in 2 contracts
Samples: Term Loan Agreement (Sovran Acquisition LTD Partnership), Term Loan Agreement (Sovran Self Storage Inc)
Events of Default and Acceleration. If any of the following events ("“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 occuroccur and be continuing:
(a) the Borrower or any Guarantor shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Guarantor shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Commitment Fee, the Agent's feeAdministrative Agent Fees, other fees or other sums due hereunder or under any of the other Loan Documents, within two five (25) Business Days after of the day on which date when 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) the Borrower (i) shall fail to comply with any of its covenants contained in ss.8§§5.4, 9 5.5, 5.10, 6 or 107 hereof, or (ii) shall fail to comply with its covenant contained in §5.6 hereof and such failure shall continue for thirty (30) days;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§12.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any material representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturitywhen due, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized LeasesLeases or any obligations with respect to interest rate protection arrangements or exchange rate protection arrangements which, which obligations exceed $5,000,000 in the aggregate, represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $50,000,000 or more, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 or evidencing any interest rate protection arrangement or exchange rate protection arrangement which in the aggregateaggregate represents Indebtedness (calculated, with respect to interest rate protection arrangements and exchange rate protection arrangements based on the notional principal amount thereof) of $50,000,000 or more, and for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gi) the Borrower or any of the other Transaction Parties its Subsidiaries (1) shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or (2) shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 (3) shall take any action to authorize or in furtherance of any of the foregoing, or (ii) 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 the other Transaction Parties its Subsidiaries and shall not have been dismissed within sixty (60) days, or the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries, exceeds in the aggregate $5,000,00050,000,000;
(j) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of §302(f)(1) of ERISA), shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a Lien in favor of such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(k) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt or the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part, or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made, in each case in violation of the provisions of this Credit Agreement;
(l) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Credit Agreement (Staples Inc), Credit Agreement (Staples Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10§9.1 and such failure shall continue for fifteen (15) calendar days after written notice thereof shall have been given to the Borrower by the Agent;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9;
(e) the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve (i) Recourse Indebtedness in excess of $10,000,000, or (ii) Non-Recourse Indebtedness in excess of $50,000,000;
(gh) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty fifteen (3015) daysdays during any calendar year, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against (x) the Borrower or any Guarantor that, either individually or in the aggregate, exceed $10,000,000.00 in any calendar year or (y) any Subsidiary of the other Transaction Parties Borrower that is not a Subsidiary Guarantor that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 in any calendar year;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lo) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be enjoinedindicted for a federal crime, restrained or in a punishment for which could include the forfeiture of (i) 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility assets of the Borrower or any of their respective Subsidiaries which in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would good faith judgment of the Majority Lenders could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation ofMaterial Adverse Effect, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or (ii) any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeUnencumbered Pool Properties;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person Guarantor denies that it has any liability or group of persons (within obligation under the meaning of Section 13 Guaranty or 14 any other Loan Document, or shall notify the Agent or any of the Securities Exchange Act Lenders of 1934such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) [reserved];
(r) [reserved];
(s) [reserved];
(t) [reserved];
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as amendeda result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not an Unencumbered Pool Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall have acquired beneficial ownership fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(within the meaning w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Rule 13d-3 promulgated by the Securities and Exchange Commission Control shall occur; or
(y) an Event of Default under said Act) of thirty percent (30%) or more any of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period other Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallLenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by Agent or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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 paymentpayment (including, without limitation, amounts due under §3.5);
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan DocumentsDocuments (including, within two (2without limitation, amounts due under §8.17) Business Days after the day on which when 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, and such failure continues for five (5) days;
(c) the any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of its their respective covenants contained in ss.8§§8.1, 8.6, 8.7, 8.8, 8.9, 8.12, 8.21, 8.22, 8.23, 9 or 10;
(d) the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents Document (other than those specified elsewhere in this ss.
13.1§13) and such failure continues for twenty thirty (2030) days after written notice of sucH failure has been given to the Borrower by the Agentdays;
(e) any representation or warranty of the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, Leases (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit which obligations exceed total in an aggregate amount in excess of $5,000,000 in the aggregate, 7,500,000; or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $5,000,000 7,500,000, in the aggregate, either case for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;, or an "Event of Default" shall occur and be continuing under the Note Purchase Agreement that permits acceleration; or (iii) default in any payment obligation under a Hedge Agreement, and such default shall continue after any applicable grace period contained in such Hedge Agreement or any other agreement or instrument relating thereto.
(g) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or shall commence any case or other proceeding relating to the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries and the Borrower (i) any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition petition, application, case or application other proceeding shall not have been dismissed within forty-five continue undismissed, or unstayed and in effect, for a period of sixty (4560) days following the filing thereofdays;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents or any material provision of any Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksRequired Lenders (or all Lenders if required under §26), or any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the any Borrower or any of the other Transaction Parties party thereto its Subsidiaries or any Guarantor or any of their respective stockholdersits Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(k) any "Event of Default" or default (after notice and expiration of any period of grace, to the extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or provided in any of the other Loan Documents, shall occur and be continuing;
(l) any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the 500,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000500,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the any Borrower or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000, and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;; or
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(pi) 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 thirty percent (30%a) 20% or more of the outstanding shares of common stock of Sovran, or (b) 33% or more in the Borroweraggregate of the outstanding limited partnership interests of SALP (other than by Sovran and its wholly-owned Subsidiaries); or, (ii) Holdings ceasing to be the sole general partner and sole investment manager of SALP; (iii) Sovran and its wholly-owned Subsidiaries cease to beneficially own 100% of the capital stock of Holdings; or (iv) during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Sovran on the first day of such period (together with directors whose election by the Board of Directors or whose nomination for election by Sovran's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Restatement Date or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Sovran; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowereach Borrower and each Guarantor; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§13.1(g) or §13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Administrative Agent or any Bankaction by the Lenders or the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc), Revolving Credit and Term Loan Agreement (Sovran Acquisition LTD Partnership)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any Reimbursement Obligation accelerated date of maturity or at any other date fixed for payment and such failure shall continue for ten (10) days;
(b) Borrower shall fail to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents when 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;
, and such failure shall continue for ten (b10) days (provided that such grace period will not apply to interest due upon the Borrower or any maturity of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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 paymentObligations);
(c) the Borrower shall fail to comply with any of its covenants covenant contained in ss.8, 9 §8 or 10§9;
(d) the Borrower or shall fail to comply with any of the other Transaction Parties covenant contained in §7.4 and such failure shall continue for ten (10) days;
(e) Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in the other subclauses of this ss.
13.1) §12); and such failure shall continue for twenty thirty (2030) days after written notice of sucH failure has thereof shall have been given to the Borrower by the Agent;
(ef) any Any representation or warranty of the made by Borrower or any of the other Transaction Parties in this Credit Agreement or by Borrower in any of the other Loan Documents Document to which it is a party, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of the other Transaction Parties shall fail to pay at maturitymaturity or otherwise when due, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect other Indebtedness having an aggregate principal amount outstanding of any Capitalized Leases, which obligations exceed at least $5,000,000 in the aggregate100,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower or any of the other Transaction Parties (1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, including, without limitation, any Mortgaged Property, (2) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (3) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower, or any such substantial part of the assets of any thereof, including, without limitation, any Mortgaged Property, or a case or other proceeding shall be commenced against the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five ninety (4590) days following the filing or commencement thereof;
(hj) a A decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties Borrower, that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,0005,000,000 (to the extent not paid or covered by insurance);
(jl) if If any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto CORR or any of their respective stockholders, partners, members or beneficiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) the Borrower Any dissolution, termination, partial or complete liquidation, merger or consolidation of any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000Borrower, or any sale, transfer or other disposition of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Eventassets of Borrower, or a failure to make a required installment or other payment (within than as permitted under the meaning terms of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC this Agreement or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeLoan Documents;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of Borrower included in the Borrower or such other Transaction Party having a fair market value Collateral;
(o) A Change of Control shall occur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in excess of $1,000,000; ortheir sole and absolute discretion);
(p) Any Event of Default, as defined in any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents other than the Limited Guaranty or the Pledge and Security Agreement, shall occur;
(q) Any amendment to or termination of 1934a financing statement naming Borrower as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of Borrower without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming Borrower as amendeddebtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other than Agent or Agent’s counsel (or by Borrower at Agent’s direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof;
(r) Either (i) a “Xxxxx 0 Xxxxxx Xxxxxxx” shall have acquired beneficial ownership occur and be continuing under the Ultra Lease, or (ii) any other “Lessee Event of Default” shall occur and not be cured within ninety (90) days after its occurrence;
(s) Any action or proceeding is commenced to foreclose or otherwise realize on the meaning of Rule 13d-3 promulgated Xxxxxxx Judgment and such Default is not cured by the Securities and Exchange Commission under said ActBorrower by the earlier of (i) sixty (60) days after commencement of thirty percent any action to have the Mortgaged Property related thereto sold to satisfy the Xxxxxxx Judgment, or (30%ii) or more five (5) Business Days prior to entry of any judgment directing the sale of the outstanding shares Mortgaged Property related thereto;
(t) Any action or proceeding is commenced to foreclose or otherwise realize on the Nerd Enterprise Mortgage, and such Default is not cured by the Borrower by the earlier of common stock (i) 60 days after the mortgagee or any other party commences any action to foreclose the Nerd Enterprise Mortgage whether by judicial action or under advertisement and power of sale, or (ii) five (5) Business Days prior to the earlier of (x) a sale of the Borrower; orMortgaged Property related thereto, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of or (y) a judgment directing such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)sale; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of Lenders or Agent. Notwithstanding the Agent other terms of this Agreement or the terms of any Bankother Loan Document, so long as the Ultra Lease remains in effect and the LGS Assets are used, maintained and operated by Lessee as permitted or required by the terms of the Ultra Lease, the breach, default or failure to perform by Borrower under any provision relating to such matters contained in the Loan Documents shall not, in and of itself, result in a Default or Event of Default under this Agreement.
Appears in 2 contracts
Samples: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)9.1, 9 9.2, 9.4, 9.5.1, 9.6, 9.9, and 9.12 - 9.17, (S)10 or 10(S)11;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, if any good faith representation made by the Borrower on the -------- Closing Date as to Pivotpoint, Inc. shall prove to have been false in any material respect on such date, such an event shall not constitute a default hereunder if all consequences, liabilities and claims associated with such false representation are in an amount which does not exceed $10,000,000 in the aggregate;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate250,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount in excess of $5,000,000 in the aggregate, 250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of its Subsidiaries (other than a Non- Material Subsidiary unless the Borrower or any other Transaction Parties Subsidiary has been adversely effected by the occurrence of such event (such a Non-Material Subsidiary causing no adverse effect being hereinafter referred to as a "Deminimis Subsidiary")) shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or of any substantial part of the assets of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or shall commence any case or other proceeding relating to the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) and the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 or any Subsidiary (other than a Deminimis Subsidiary) of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) that, with other outstanding final judgments, undischarged, against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; ERISA, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000Plan, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Agent determines -------- in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(p) the Borrower shall at any time fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is a direct Subsidiary (other than any Subsidiary formed in connection with Mapics Business Solutions), and any Guarantor shall fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is its direct Subsidiary, provided, however, to the extent the Borrower or any Guarantor, as the case -------- ------- may be, owns less than one hundred percent (100%) of the capital stock of any Guarantor at the time such Subsidiary becomes a Guarantor hereunder, then it shall only constitute an Event of Default if the Borrower or the Guarantor, as the case may be, shall at any time own less than one hundred percent (100%) of the amount of the capital stock (in terms of percentages) of such Subsidiary than the Borrower or Guarantor, as the case may be, owned on the date such Person became a Subsidiary of the Borrower or such Guarantor, or 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period the first day on which the majority of twelve consecutive calendar months, individuals who were the 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)are not Continuing Directors; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event -------- of Default specified in ss.ss.13.1(g(S)(S)14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) any of the Borrower Borrowers shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) any of the Borrower Borrowers shall fail to comply with any of its covenants contained in ss.8ss.ss.6, 8.1, 8.2, 8.4, 8.5.1., 8.5.3, 8.5.4, 8.7, 8.9, 8.12, 8.14, 9 or 10;
(d) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Company by the Agent;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation in excess of $1,000,000 for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the any Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the any Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the any Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the any Borrower or any of the other Transaction Parties 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 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 any Borrower or any of the other Transaction Parties its Subsidiaries and the any Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or any of the other Transaction Parties 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 in respect of the any Borrower or any Subsidiary of the other Transaction Parties such Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the such Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the any Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the any Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the any Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any of the property of any Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the any Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the such Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.Subsidiary;
Appears in 2 contracts
Samples: Revolving Credit Agreement (Genrad Inc), Revolving Credit Agreement (Genrad Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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, and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the maturity of the Obligations);
(c) the Borrower or any other Loan Party shall fail to comply with any of its covenants covenant contained in ss.8§7.4, 9 §7.9, §8 or 10§9;
(d) the Borrower or any of the other Transaction Parties Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in the other subclauses of this ss.
13.1) §12); and such failure shall continue for twenty thirty (2030) days after written notice of sucH failure has thereof shall have been given to the Borrower by the Agent;
(e) any Any representation or warranty of the Borrower or made by any of the other Transaction Parties Loan Party in this Credit Agreement or in any of the other Loan Documents Document to which it is a party, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(fi) the Borrower or any of the other Transaction Parties Restricted Subsidiary shall fail to pay at maturitymaturity or otherwise when due, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect other Indebtedness having an aggregate principal amount outstanding of any Capitalized Leases, which obligations exceed at least $5,000,000 in the aggregate100,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;, including without limitation the occurrence of any “Event of Default” (A) (as such term is defined in the MGP/UPS Credit Facility) under the MGP/UPS Credit Facility and (B) (as such term is defined in the Senior Unsecured Convertible Note Indenture) under the Senior Unsecured Convertible Notes or the Senior Unsecured Convertible Note Indenture; or (ii) any Unrestricted Subsidiary shall fail to pay at maturity or otherwise when due, or within any applicable period of grace, any obligation for borrowed money or credit received or other Indebtedness having an aggregate principal amount outstanding of at least $5,000,000, or fail to comply with any financial covenant with respect thereto, or any bankruptcy or insolvency default with respect to such Unrestricted Subsidiary shall occur under any agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness and remain uncured for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof,.
(g) the Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of the other Transaction Parties $5,000,000)
(1) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Subsidiary or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, including, without limitation, any Eligible Asset, (2) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such 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 (3) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) A petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower or any such Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of $5,000,000), or any substantial part of the assets of any thereof, including, without limitation, any Eligible Asset, or a case or other proceeding shall be commenced against the Borrower or such Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of the other Transaction Parties debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five ninety (4590) days following the filing or commencement thereof;
(hi) a A decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any Restricted Subsidiary (or any Unrestricted Subsidiary with assets in excess of the other Transaction Parties $5,000,000) 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 or any of the other Transaction Parties such Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries, that, with other outstanding final judgments, undischarged, against Borrower and its Restricted Subsidiaries exceeds in the Borrower aggregate $100,000 (or any of the other Transaction Parties against Unrestricted Subsidiaries exceeds in the aggregate $5,000,000) (to the extent not paid or covered by insurance);
(jk) if If any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto Loan Party or any of their respective stockholders, partners, members or beneficiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) Any dissolution, termination, partial or complete liquidation, merger or consolidation of any Loan Party, or any sale, transfer or other disposition of the assets of any Loan Party, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) Borrower or any ERISA Affiliate incurs of its Subsidiaries shall be indicted for a federal crime, a punishment for which could include the forfeiture of any liability to assets of Borrower included in the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with Collateral;
(n) With respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN Event shall have occurred that such event (A) reasonably could be expected to result in liability of the Borrower any Loan Party to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) A Change of Control shall occur without the Borrower or prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(p) Any Event of Default, as defined in any of the other Transaction Parties Loan Documents, shall be indicted for occur;
(q) Any amendment to or termination of a state or federal crimefinancing statement naming any Loan Party as debtor and Agent as secured party relating to the Collateral, or any civil correction statement with respect thereto, is filed in any jurisdiction by, or criminal action shall otherwise have been brought caused by, or threatened against at the Borrower instance of any Loan Party without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any the other Transaction Partiesamendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party, a punishment for which or any correction statement with respect thereto, is filed in any jurisdiction by any party other than Agent or Agent’s counsel (or by Borrower at Agent’s direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such case could include filing to be completely nullified to the forfeiture reasonable satisfaction of any assets of the Agent within ten (10) days after notice to Borrower or such other Transaction Party having a fair market value in excess of $1,000,000thereof; or
(pr) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)maintain its REIT Status; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent any of Lenders or any Bank.Agent;
Appears in 2 contracts
Samples: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events or conditions ("“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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two three (23) Business Days after of the day on which date 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) the Borrower shall fail to comply (i) with any of its covenants contained in ss.8§§8.12, 9 (with the exception of 9.7) or 10, or (ii) within ten (10) days after the delivery dates required therein, with any of its covenants contained in §§8.4 or 8.9;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
§13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries set forth in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedrepeated (with such qualifications applicable at such time);
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 Leases or other Indebtedness in the aggregateaggregate amount of $20,000,000 or more, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 or other Indebtedness in the aggregate, aggregate amount of $20,000,000 or more for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) consecutive days, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries not covered by insurance that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries not covered by insurance exceeds in the aggregate $5,000,0003,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or if the Administrative 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its Subsidiaries party thereto or any of their respective stockholdersmembers or stockholders (as the case may be), or any court of competent jurisdiction 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 3,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0003,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(1) of ERISA), provided provided, that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 3,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would reasonably be expected to have a material adverse effect on the business or financial condition Material Adverse Effect;
(m) a Change of the Borrower and the other Transaction Parties, considered as a wholeControl shall occur;
(n) the sum of the outstanding amount of the Revolving Credit Loans, the Swing Line Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (a) the Total Commitment at such time and (b) the Borrowing Base at such time and the Borrower does not remedy such situation (by payment of the amount set forth in § 3.2 or otherwise) within ten (10) days;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(op) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which the punishment in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,0007,000,000; or
(pq) any person the number of cost equivalent units (or group CEUs) included in the fleet 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 containers owned by the Securities and Exchange Commission under said Act) of thirty percent (30%) Borrower or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of managed by the Borrower on behalf of third-parties (such CEUs to be calculated by Borrower consistently with the first current manner in which it calculates CEUs on behalf of third-party owners of fleets that it manages), shall, as of the last business day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shallany calendar month, at any time, legally or beneficially own be less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)300,000; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided, that in the event of any Event of Default specified in ss.ss.13.1(g§§13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (SeaCube Container Leasing Ltd.), Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to perform any term, covenant or agreement contained in §9, and with respect to a failure to comply with any of its covenants contained in ss.8§9.1 or §9.11 only, 9 or 10such failure shall continue for five (5) Business Days after such occurrence;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involves singly or in the aggregate obligations for Indebtedness totaling in excess of (i) prior to the occurrence of the IPO Event, $1,000,000.00, or (ii) from and after the occurrence of the IPO Event, $5,000,000.00;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgmentseither individually or in the aggregate, undischarged, against exceed $1,000,000.00 per occurrence or during any twelve (12) month period prior to the Borrower or any occurrence of the other Transaction Parties exceeds in IPO Event, or $5,000,000.00 per occurrence or during any twelve (12) month period from and after the aggregate $5,000,000occurrence of the IPO Event;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 prior to the occurrence of the IPO Event, or $5,000,000.00 from and after the occurrence of the IPO Event and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure forfeiture to renewthe United States of America of (i) any assets of the Borrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries which in the other Transaction Parties if such loss, suspension, revocation or failure good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on Material Adverse Effect, or (ii) the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against the Borrower agreement under any Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person or group Change of persons (within Control shall occur without the meaning of Section 13 or 14 consent of the Securities Exchange Act Required Lenders; or
(q) an Event of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission Default under said Act) of thirty percent (30%) or more any of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period other Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallRequired Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to perform any term, covenant or agreement contained in §9, and with respect to a failure to comply with any of its covenants contained in ss.8§9.1, 9 or 10§9.2 and §9.4 only, such failure shall continue for five (5) Business Days after such occurrence;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involves singly or in the aggregate (i) any obligations for Indebtedness or under Derivative Contracts (other than Non-Recourse Indebtedness) or (ii) Non-Recourse Indebtedness totaling $25,000,000.00 or greater;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five ninety (4590) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (3045) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, rescinded by the Borrower or any Guarantor other than in each case otherwise than accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 10,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure forfeiture to renewthe United States of America of (i) any assets of the Borrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries which in the other Transaction Parties if such loss, suspension, revocation or failure good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on the business Material Adverse Effect, or financial condition of the Borrower and the other Transaction Parties, considered as a whole(ii) any Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against the Borrower agreement under any Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person Change of Control shall occur;
(q) any default, material misrepresentation or group breach of persons warranty by the Borrower as the subordinate lender under any Subordination Agreement; or
(within the meaning r) an Event of Section 13 or 14 Default under any of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallRequired Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Jernigan Capital, Inc.), Credit Agreement (Jernigan Capital, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment feeCommitment Fee, any Letter of Credit Fee, any Fronting Fee, any fees under the Agent's feeFee Letter, or any other sums due hereunder or under any of the other Loan Documents, within two three (23) Business Days after of the day on which date when the same shall become became 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) any of the Borrower Borrowers shall fail to comply with any of its respective covenants contained in ss.8Sections 9.5, 9 9.9, 10 or 1011, with any of its covenants contained in Section 9.4 for a period in excess of five (5) Business Days, or with any of the covenants contained in any of the Mortgages;
(d) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 14.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Agent;
(e) any representation or warranty of the by any Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fi) the holders of all or any part of the Convertible Subordinated Debt shall accelerate the maturity of all or any part of the Convertible Subordinated Debt; or the Convertible Subordinated Debt shall be (or shall be required at such time to be) prepaid, redeemed or repurchased in whole or in part; or DBI or any of its Subsidiaries shall be or become required under the terms of any of the Subordinated Debt Documents to prepay, redeem or repurchase (or shall be or become required thereunder to offer to prepay, redeem or repurchase) all or any part of the Convertible Subordinated Debt; or (ii) any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized LeasesLeases in an outstanding principal amount of $250,000, which obligations exceed $5,000,000 in the aggregate, or any Convertible Subordinated Debt or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, such Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the any Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, receiver or receiver and manager of the any Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the any Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the any Borrower or any of the other Transaction Parties 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 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 any Borrower or any of the other Transaction Parties and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, receiver or receiver and manager or adjudicating the any Borrower or any of the other Transaction Parties 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 in respect of the any Borrower or any of the other Transaction Parties its Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, twenty consecutive days any final judgment against the any Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries, exceeds in the aggregate aggregate, $5,000,0001,000,000 (net of accepted insurance coverage);
(j) a Change of Control or a Repurchase Event shall occur;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the any Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan similar Canadian authorities (excluding requested insurance premiums payable in the ordinary course) pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 250,000;
(m) the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Borrowers or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties their Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God God, terrorism or public enemy, or other casualty, which in any such case causes, for more than fifteen thirty (1530) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower Borrowers and the other Transaction Parties, considered as a wholetheir Subsidiaries;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower Borrowers and the other Transaction Parties, considered their Subsidiaries taken as a whole;
(op) the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries shall be indicted for a state state, provincial or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiessuch Person, a punishment for which in any such case could reasonably be expected to include the forfeiture of any assets of the Borrower or such other Transaction Party Person having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); 250,000. then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Events of Default and Acceleration. If any of the following events ("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:: (
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
; (b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Facility Fee, the Administrative Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two five (25) Business Days days after the day on which 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) the Borrower or the Parent shall fail to comply with any of its their covenants contained in ss.87 (other than 7.2, 9 7.7, 7.10 and 7.11), 8 or 10;
9; (d) the Borrower or the Parent or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.112) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
; (e) any representation or warranty of the Borrower or the Parent or any of the other Transaction Parties their Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
; (f) any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations for obligation (including any guaranties thereof) in respect of borrowed money or credit received (including letters of credit issued for the account of the Borrower, the Parent or any of its Subsidiaries) or in respect of any Capitalized Leases, which obligations exceed Leases in excess of $5,000,000 10,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in excess of $5,000,000 10,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
; (g) any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries or of any substantial part of the assets of any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries or shall commence any case or other proceeding relating to any of the Borrower Borrower, the Parent or any of the other Transaction Parties 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 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 any of the Borrower Borrower, the Parent or any of their Subsidiaries and any of the other Transaction Parties and Borrower, the Borrower Parent or any of the other Transaction Parties their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrower, the Parent or any of the other Transaction Parties 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 in respect of any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
; (i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or Borrower, the Parent and any of the other Transaction Parties their Subsidiaries exceeds in the aggregate $5,000,000;; (j)
(ji) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or (ii) 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 or on behalf of the Borrower or any of (A) the other Transaction Parties party thereto Borrower, the Parent or any of their respective Subsidiaries party thereto, or (B) any of the Xxxxx family stockholders, or (C) any other stockholder if such action, suit or proceeding has not been dismissed or withdrawn within sixty (60) days of the commencement thereof, or (iii) 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
; (k) the Borrower or any ERISA Affiliate incurs any liability pursuant to Title IV of ERISA (other than for premiums) to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 1,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
; (l) any of the Borrower Borrower, the Parent or any of the other Transaction Parties their Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
; or (m) there the Parent shall occur any strikecease to own, lockoutdirectly or indirectly, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility 100% of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common capital stock of the Borrower; or Xxxxxxx X. Xxxxx and members of the Xxxxx family (or any trusts or similar entities established for the benefit of members of the Xxxxx family) shall at any time cease to own, legally or beneficially, at least fifty-one percent (51%) (by number of votes) of the Voting Stock of the Parent; or, during any period of twelve consecutive calendar months, individuals who were directors or who were elected by the members of the Borrower board of directors of the Parent on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); Parent. then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrower and the Parent; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g12.1(g) or 13.1(h12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10(S)9.1 and such failure shall continue to exist after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in (S)12.2 shall have ended;
(d) the Borrower shall fail to comply with any covenant contained in (S)9.2, (S)9.3, (S)9.4, (S)9.5, (S)9.6, (S)9.7 or (S)9.8 and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent;
(e) any of the Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to S)12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries (i) shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or (ii) shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof; provided that the events described in this (S)12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this (S)12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received totaling in excess of $5,000,000.00;
(gh) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,000;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower or any ERISA Affiliate incurs Guarantor shall occur or any liability to sale, transfer or other disposition of the PBGC or a Guaranteed Pension Plan pursuant to Title IV assets of ERISA in an aggregate amount exceeding $2,000,000; any of the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV Guarantor shall occur other than as permitted under the terms of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, this Agreement or any of the following occurs other Loan Documents;
(n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of or a trustee shall have been appointed by the United Xxxxxx Xxxxxxxx Xxxxx to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) any suit or proceeding shall be filed against or with respect to the Borrower Borrower, any Guarantor, any of their respective Subsidiaries or any Collateral which in the good faith business judgment of the Required Lenders after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the other Transaction Parties Loan Documents and such suit or proceeding shall not have been dismissed within sixty (60) days following the filing thereof;
(p) the Borrower, any Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the Borrower good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Collateral;
(q) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor's intention to attempt to cancel or terminate the Guaranty or any other Transaction Party having a fair market value in excess Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document beyond any applicable cure period;
(r) any Change of $1,000,000Control shall occur; or
(ps) an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g(S)12.1(h), (S)12.1(i) or 13.1(h(S)12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent's sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations or Hedge Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower. If at any time the aggregate amount of funds pledged to Agent as collateral for such Letters of Credit shall exceed one hundred percent (100%) of the aggregate face amount of all amounts available to be drawn under such Letters of Credit (including any amounts that may be reinstated thereunder), Agent shall release the amount of such excess deposited by the Borrower to the Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with perform any of its covenants term, covenant or agreement contained in ss.8, 9 or 10§9;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involves singly or in the aggregate obligations totaling $5,000,000.00 of Indebtedness or more;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayedunstayed (including as a result of an appeal), for more than thirty (30) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,0005,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or contest the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding excess of $2,000,000 5,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ln) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be enjoinedindicted for a federal crime, restrained or in a punishment for which could include the forfeiture of (i) 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility assets of the Borrower or any of their respective Subsidiaries which in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would good faith judgment of the Required Lenders could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation ofMaterial Adverse Effect, or failure to renew, any license or permit now held or hereafter acquired by (ii) the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against the Borrower agreement under any Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person or group Change of persons Control shall occur; or
(within the meaning q) an Event of Section 13 or 14 Default under any of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallRequired Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following ---------------------------------- events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)9.1, 9 9.2, 9.4, 9.5.1, 9.6, 9.9, and 9.12 - 9.17, (S)10 or 10(S)11;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, if any good faith representation made -------- by the Borrower on the Closing Date as to Pivotpoint, Inc. shall prove to have been false in any -71- material respect on such date, such an event shall not constitute a default hereunder if all consequences, liabilities and claims associated with such false representation are in an amount which does not exceed $10,000,000 in the aggregate;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate250,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount in excess of $5,000,000 in the aggregate, 250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of its Subsidiaries (other than a Non-Material Subsidiary unless the Borrower or any other Transaction Parties Subsidiary has been adversely effected by the occurrence of such event (such a Non-Material Subsidiary causing no adverse effect being hereinafter referred to as a "Deminimis Subsidiary")) shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or of any substantial part of the assets of the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) or shall commence any case or other proceeding relating to the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) and the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) 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 or any Subsidiary (other than a Deminimis Subsidiary) of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) that, with other outstanding final judgments, undischarged, against the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; ERISA, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000Plan, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretioN discretion that -------- such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the its Subsidiaries (other Transaction Parties than a Deminimis Subsidiary) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or
(p) the Borrower shall at any time fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is a direct Subsidiary (other than any Subsidiary formed in connection with Mapics Business Solutions), and any Guarantor shall fail to own one hundred percent (100%) of the Capital Stock of any Guarantor which is its direct Subsidiary, provided, however, to the extent the Borrower or any -------- ------- Guarantor, as the case may be, owns less than one hundred percent (100%) of the capital stock of any Guarantor at the time such Subsidiary becomes a Guarantor hereunder, then it shall only constitute an Event of Default if the Borrower or the Guarantor, as the case may be, shall at any time own less than one hundred percent (100%) of the amount of the capital stock (in terms of percentages) of such Subsidiary than the Borrower or Guarantor, as the case may be, owned on the date such Person became a Subsidiary of the Borrower or such Guarantor, or 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period the first day on which the majority of twelve consecutive calendar months, individuals who were the 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)are not Continuing Directors; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event -------- of Default specified in ss.ss.13.1(g(S)(S)14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payablepayable or required, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries (i) shall fail to pay any interest on the LoansLoans (A) within one (1) day following the date when the same shall become due and payable, other than at the commitment fee, stated date of maturity or any Letter accelerated date of Credit Fee, maturity or (B) when the Agent's fee, same shall become due and payable at the stated date of maturity or other any accelerated date of maturity or (ii) shall fail to pay sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Section 8 (other than Sections 8.6(b), 8.13 and 8.17), 9 or 10;
(d) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or (ii) fail to observe or perform any material term, covenant covenant, or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received received, or in respect of any Capitalized Leases exceeding Leases, in each case under this subparagraph (f) in excess of $5,000,000 in 1,000,000.00, including without limitation, under the aggregateSenior Loan Documents or under the Trade Vendor Term Sheet or the Trade Vendor Extension Agreement, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, whether or not any such acceleration has taken place;
(g) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Person or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person 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 the other Transaction Parties such Person and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Person exceeds $1,500,000.000 in the aggregate $5,000,000aggregate;
(j) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded or the Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,500,000.00 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen ten (1510) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility retail locations of the Borrower Borrower, the Guarantor or any of their respective Subsidiaries constituting twenty-five percent (25%) or more of the other Transaction Parties Borrower’s and its Subsidiaries retail locations if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeinsurance;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;any such Person; or
(o) the Borrower Borrower, the Guarantor or any of the other Transaction Parties their respective Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiessuch Person, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or any such other Transaction Party Person having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)1,500,000; then, and in any such event, event so long as the same may be continuing, the Agent Agents may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent Agents or any BankLenders.
Appears in 1 contract
Samples: Subordination Agreement (Whitehall Jewelers Holdings, Inc.)
Events of Default and Acceleration. If The term "Event of Default", ---------------------------------- wherever used in this Security Deed, shall mean any one or more of the following events ("Events of Default" or, if the giving of notice conditions or the lapse of time or both is required, then, prior to such notice or lapse of time, "Defaults") shall occurevents:
(a) the Failure by Borrower shall fail to pay as and when due and payable any interest on or principal of or other sum payable under the Loans or any Reimbursement Obligation when 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;Note; or
(b) the Failure by Borrower or any of the other Transaction Parties shall fail to pay as and when due and payable any interest on the Loanssums to be paid by Borrower under this Security Deed (including, the commitment feebut not limited to, any Letter payment of Credit Fee, Funds) or the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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;Reimbursement Agreement; or
(c) the Failure by Borrower shall fail to comply with duly observe or perform any of its covenants term, covenant, condition or agreement contained in ss.8, 9 this Security Deed (other than the obligations to make payments referred to in subparagraph (b) above) contained in Paragraphs 3 or 10;4 of this Security Deed and continuance of such failure for a period of thirty (30) days after written notice thereof from Lender; or
(d) the Failure by Borrower to duly observe or any of the other Transaction Parties shall fail to perform any other term, covenant covenant, condition or agreement contained herein in Paragraphs 6 or 7 of this Security Deed; and with respect to Borrower's obligations to comply with all applicable Environmental Laws, including either or both the clean-up and removal of Hazardous Materials present on the Property, Borrower shall have at least twenty (20) days to achieve such full compliance after written notice from Lender requiring such compliance, if Borrower shall commence and diligently pursue to full compliance in accordance with the terms of Paragraph 7, plus such additional time as Lender, in its sole judgment, shall allow Borrower for such compliance; provided, however, Lender may in its sole judgment, declare an Event of Default to exist by written notice thereof to Borrower at any time after the expiration of such twenty (20) day period if such full compliance with all applicable Environmental Laws shall not have been so achieved at the time of such notice; or hand continuance of such failure for a period of five (5) days after notice thereof from Lender; or
(e) Failure by Borrower to duly observe or perform any other Loan Documents (other than those specified elsewhere term, covenant, condition or agreement contained in this ss.
13.1) Security Deed or the Loan Agreement and continuance of such failure for a period of twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;thereof from Lender; or
(ef) any Any representation or warranty of Borrower contained in this Security Deed or the Reimbursement Agreement or the Note Pledge Agreement or the Loan Agreement shall prove to have been false or incorrect in any material respect upon the date when made; or
(g) Without the prior written consent of Lender, any change in the majority of the voting stock of Borrower, any merger, reorganization, dissolution or termination of existence of Borrower as a corporation; or
(h) The filing by Borrower or any guarantor of the Obligations of a voluntary petition in bankruptcy under Title 11 of the United States Code, or the issuing of an order for relief against Borrower or any guarantor in any involuntary petition in bankruptcy under Title 11 of the United States Code, or the filing by Borrower or any guarantor of any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other Transaction Parties law or regulation relating to bankruptcy, insolvency or, other relief for debtors, or Borrower's or any guarantor's seeking or consenting to or acquiescing in this Credit the appointment of any custodian, trustee, receiver, conservator or liquidator of Borrower or such guarantor, respectively, or of all or any substantial part of its respective property, or the making by Borrower or any guarantor of any assignment for the benefit of creditors, or Borrower's or any guarantor's failure generally to pay its debts, as such debts become due, or Borrower's or any guarantor's giving of notice to any governmental authority or body of insolvency or pending insolvency or suspension of operations; or
(i) The entry by a court of competent jurisdiction of any order, judgment or decree approving a petition filed against Borrower or any guarantor of the Obligations seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or other law or regulation relating to bankruptcy, insolvency or other relief for debtors, or appointing any custodian, trustee, receiver, conservator or liquidator of all or any substantial part of Borrower's or any guarantor's property; or
(j) The occurrence of any "Event of Default" as defined in the Sublease, the Reimbursement Agreement or any of the other Loan Documents or in executed by Xxxxxxxx and continuation of such default beyond any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon grace period set forth therein for the date when made or deemed to have been made or repeated;curing thereof, or
(fk) Such a change in the condition or affairs (financial or otherwise) of the Borrower or of any obligor, endorser, guarantor or surety under or for any of the other Transaction Parties shall fail to pay at maturitySecured Obligations, or within decline in the value of the Property as, in the opinion of the Lender, materially impairs the Lender's security or increases its risk or if the Lender in good xxxxx xxxxx itself insecure; or
(l) Default after the expiration of any applicable cure period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateprompt payment, performance or fail to observe or perform observance of any material term, covenant provision, condition, covenant, warranty or agreement contained representation set forth in any agreement mortgages, liens, lease or encumbrances affecting the Property, whether or not such mortgage, lien, lease or encumbrance is senior or junior to this Mortgage, and whether or not such mortgage, lien, lease or encumbrance has been consented to by which it is bound (excludingXxxxxx, provided, however, any such termthat nothing herein shall be deemed to be a consent by Xxxxxx, covenant implied or agreement relating otherwise, to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect granting of any Capitalized Leases exceeding $5,000,000 in the aggregatemortgage, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder lien or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect encumbrance on the business or financial condition Premises. If an Event of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Default 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 more of the outstanding shares of common stock of the Borrower; oroccurred, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shallLender may, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shallLender's option, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement entire Secured Obligations to be, and they shall thereupon forthwith become, be immediately due and payable payable, whereupon the same shall become immediately due and payable, and without presentment, demandprotest, protest demand or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrower and Lender may exercise any and all of its remedies; PROVIDED provided that in the event of if any Event of Default specified in ss.ss.13.1(gclauses -------- (g), (h), (i), (k) or 13.1(h)(l) of this Paragraph shall occur, all such amounts the Secured Obligations automatically shall become and be immediately due and payable automatically and Lender may exercise any and all of its remedies, without any requirement declaration or other act on the part of Lender, unless a notice from of grace period shall be given therein for any specific type of Event of Default. No omission on the Agent or any Bankpart of Lender to exercise such option when entitled to do so shall be construed as a waiver of such right.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with perform any of its covenants other term, covenant or agreement contained in ss.8, 9 or 10§9;
(d) the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof; provided that the events described in §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00 or Non-Recourse Indebtedness totaling in excess of $50,000,000.00;
(g) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (3045) days, any one or more uninsured or unbonded final judgment judgments against (x) the Borrower or any Guarantor that, either individually or in the aggregate, exceed $25,000,000.00 in any calendar year or (y) any Subsidiary of the other Transaction Parties Borrower that is not a Subsidiary Guarantor that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00050,000,000.00 in any calendar year;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 10,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ln) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be enjoinedindicted for a federal crime, restrained or in a punishment for which could include the forfeiture of (i) 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility assets of the Borrower or any of their respective Subsidiaries which in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would good faith judgment of the Required Lenders could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation ofMaterial Adverse Effect, or failure to renew, any license or permit now held or hereafter acquired by (ii) the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the other Transaction Parties shall be indicted for a state Lenders of such Guarantor’s intention to attempt to cancel or federal crime, terminate the Guaranty or any civil or criminal action shall otherwise have been brought or threatened against other Loan Document;
(p) the Borrower Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the other Transaction Partiescovenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a punishment for which result of such failure if such failure relates solely to a parcel or parcels of Real Estate whose book value, either individually or in the aggregate, does not exceed $50,000,000.00;
(q) any such case could include the forfeiture Change of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000Control shall occur; or
(pr) an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h)§12.1(i) as to Borrower or REIT, all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the LoansLoans or any fees, the commitment fee, any Letter of Credit Fee, the Agent's feeexpense, or other sums due hereunder or under any of the other Loan Documents, within two fifteen (215) Business Days after the day on which days of when 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) the Borrower shall fail to pay when due any amount due to any Issuing Lender with respect to a Letter of Credit;
(d) except as provided in Section 12.1(e), below, any Obligor shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower this Agreement or any of the covenants contained in any other Transaction Parties Loan Documents;
(e) any Obligor shall fail to perform any term, covenant or agreement contained herein or in any Sections 7.6, 7.8 and 7.10 of the other Loan Documents this Agreement for thirty (other than those specified elsewhere in this ss.
13.1) for twenty (2030) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(ef) any representation or warranty of the Borrower or any of the other Transaction Parties Obligor in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove is determined by the Agent to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of the other Transaction Parties Obligor shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in excess of $5,000,000 500,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower any Obligor (other than DTM) shall cease to be Solvent, or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties Obligor or of any substantial part of the assets of the Borrower or any of the other Transaction Parties Obligor or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties Obligor under any bankruptcy, reorganizationreor ganization, 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 foregoingfore going, 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 the other Transaction Parties Obligor and the Borrower or any of the other Transaction Parties such Obligor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(hi) The filing of any case or other proceeding against any Obligor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect and such case or proceeding is not discharged or dismissed within sixty (60) days of its commencement; a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties Obligor 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 or any of the other Transaction Parties Obligor, in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied unsat isfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower or any of the other Transaction Parties Obligor that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties Obligors exceeds $2,000,000.00 in the aggregate $5,000,000aggregate;
(jk) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, rescinded 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersObligor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower any Obligor to the PBGC or the on such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000.00 and (Bi) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (ii) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties Obligor shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orany Obligor;
(pn) Any uninsured loss, theft, damage or destruction to or of any person or group of persons (within the meaning of Section 13 or 14 material part of the Securities Exchange Act of 1934Collateral, 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 encumbrances or the Borrower shallmaking of any levy, at any timeseizure, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); attachment thereof or thereon. then, and in any such event, so long as the same may be continuingcontinu ing, the Agent may, and and, upon the request of the Majority Banks Required Lenders in any other case, shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSection 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Agent Lenders or any Bankthe Agent.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dollar Tree Stores Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any installment of principal of the Loans or any Reimbursement Obligation Term Loan when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the LoansTerm Loan, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and such failure shall continue for three (3) days after written notice of such failure has been given to the Borrower by the Administrative Agent;
(c) the Borrower any Credit Party shall fail to comply with any of its covenants contained in ss.87.1, 9 7.4, 7.5, 7.6, 7.7, 7.10, 7.11, 7.12, 7.13, 7.15, 7.16, 7.17, 8 or 109;
(d) the Borrower or any of the other Transaction Parties Credit Party shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1section 12.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties Credit Party in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties Credit Party shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Credit Party or of any substantial part of the assets of the Borrower or any of the other Transaction Parties Credit Party or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties Credit Party 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 (including a bankruptcy application) shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of the other Transaction Parties Credit Party and the Borrower or any of the other Transaction Parties such Credit Party shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed or stayed within forty-five sixty (4560) days following the filing thereof; or a receiver, trustee or other similar official shall be appointed for any Canadian Subsidiary or for any substantial part of the assets any Canadian Subsidiary;
(hg) a decree or order (including a bankruptcy order) is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties Credit Party bankrupt or insolvent, or approving a petition or a bankruptcy application in any such case or other proceeding, or a decree or order (including a bankruptcy order) for relief is entered in respect of the Borrower or any of the other Transaction Parties Credit Party in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ih) there shall remain in force, undischarged, unsatisfied unsatisfied, unbonded and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties Credit Party (considered collectively) that exceeds in the aggregate $5,000,0001,000,000, which are not covered by insurance policies as to which coverage has been accepted;
(A) any Credit Party or any ERISA Affiliate (considered collectively) incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Credit Party or any ERISA Affiliate (considered collectively)is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (x) could be expected to result in liability of the Credit Parties to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and (y) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the approp riate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan; (B) a Canadian Subsidiary terminates any Guaranteed Pension Plan applicable to it, (C) any event occurs providing grounds to terminate or wind-up a Guaranteed Pension Plan applicable to any Canadian Borrower Subsidiary in whole or in part by order of any applicable pension regulatory authority or (D) any event or condition occurs or exists which would require the appointment by the applicable regulator of a trustee or similar Person to administer a Guaranteed Pension applicable to any Canadian Subsidiary;
(j) any Credit Party shall fail to pay at maturity, or within any applicable period of grace, any obligation for Indebtedness in excess of $500,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing Indebtedness in excess of $500,000 for such period of time as would permit (assuming the lapse of time and/or giving of appropriate notice if required and assuming such breach has not been cured within the applicable grace period thereunder) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative Agent's security interests, mortgages or liens in all or a material portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents and the Intercreditor Agreement, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto Credit Party or any of their respective stockholdersequity holders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) if any material covenant, agreement or obligation of any Credit Party contained in or evidenced by the Borrower or any ERISA Affiliate incurs any liability Loan Documents shall cease to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000be legal, valid, binding, or any enforceable in accordance with the terms thereof other than as a result of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, default or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan waiver thereof by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) daysAdministrative Agent;
(m) a Change of Control shall occur;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, expropriation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties Credit Party if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business business, assets, operation or financial condition of the Borrower and the other Transaction Parties, considered Credit Parties (taken as a whole), or the ability of any Credit Party to fulfill its obligations under the Credit Agreement or the other Loan Documents;
(no) any Credit Party shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any part of their business and such order shall continue in effect for more than thirty (30) days unless such order would not have a material adverse effect on the business, assets, operation or financial condition of the Credit Parties (taken as a whole), or the ability of any Credit Party to fulfill its obligations under this Credit Agreement or the other Loan Documents;
(p) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties Credit Party if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business business, assets, operation or financial condition of the Borrower and the other Transaction Parties, considered Credit Parties (taken as a whole), or the ability of any Credit Party to fulfill its obligations under this Credit Agreement or the other Loan Documents;
(oi) the Borrower holders of all or any part of the other Transaction Parties Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall be required to be made or (ii) any Credit Party shall fail to observe or perform any material term, covenant or agreement contained in any Subordinated Debt Document as would permit (assuming the lapse of time and/or giving of appropriate notice if required and assuming such breach has not been cured within the applicable grace period thereunder) the holders thereof to accelerate the maturity thereof;
(r) any "event of default" under the Senior Credit Facility Loan Agreement shall occur or the holders of all or any part of the Senior Credit Facility Loan shall accelerate the maturity of all or any part of the Senior Credit Facility Loan;
(s) the Obligations shall cease for any reason rank senior in right of payment to any Subordinated Debt;
(t) the provisions in the Intercreditor Agreement shall cease, in whole or in part, to be effective or cease to be legally valid, binding and enforceable against the holders of the Senior Credit Facility Loan; or
(u) any Credit Party shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction PartiesCredit Party, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction any Credit Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrower, declare all amounts owing with respect to this Credit Agreement, the Notes Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowereach Credit Party; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gsections 12.1(f) or 13.1(h12.1(g), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (each, an "Events Event 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, a "DefaultsDefault") shall occur:
(a) a. the Borrower Company shall fail to pay any principal of or interest on the Loans or any Reimbursement Obligation Convertible Note when 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;
(b) ; provided however, such failure shall not constitute a default if the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, required payment is made within two (2) Business Days five days after the day on which the same shall become date it first became due and payable, whether at payable and such failure has not occurred more than two times in the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;preceding 12 months.
(c) b. the Borrower Company shall fail to comply in any material respect with any of its covenants contained in ss.8this Agreement, 9 the Convertible Note, the Warrant, the Bank One Loan Documents, the Security Agreements or 10any other document, instrument or agreement entered into in connection with this Agreement;
(d) c. the Borrower or any of the other Transaction Parties Company shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agentherein;
(e) d. any representation or warranty of the Borrower or any of the other Transaction Parties Company in this Credit Agreement or any of in the other Loan Documents Convertible Note or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) e. the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties Company shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties Company or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its assets, or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties Company 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 the other Transaction Parties Company and the Borrower or any of the other Transaction Parties Company shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following fail to contest the filing thereofsame in a timely manner;
(h) a decree f. an involuntary petition shall be filed or order is entered appointing any such trusteean involuntary proceeding shall be commenced seeking liquidation, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties bankrupt or insolvent, or approving a petition in any such case reorganization or other proceeding, or a decree or order for relief is entered in respect of the Borrower Company or of its debts or any substantial part of its assets, under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constitutedforegoing shall be entered;
(i) g. there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any uninsured final judgment against the Borrower or any of the other Transaction Parties Company that, alone or with other outstanding uninsured final judgments, undischarged, undischarged against the Borrower or any of the other Transaction Parties Company, exceeds in the aggregate $5,000,000100,000;
(j) h. if this Agreement, the Convertible Note or any of the Loan Documents documents executed in connection herewith, shall be cancelled, terminated, revoked or rescinded, rescinded other than in each case otherwise than accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksSubscriber, or any action or suit at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents such documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersCompany, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.regulatory
Appears in 1 contract
Samples: Subscription and Investment Representation Agreement (Wayne County Employees Retirement System)
Events of Default and Acceleration. If 6.1 The occurrence of any one or more of the following events ("Events shall constitute an Event 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 occurDefault hereunder:
(a) the Borrower shall fail 6.1.1 Failure to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payableprincipal, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower interest or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which the same shall become due obligations as and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentwhen due;
(c) 6.1.2 Failure to perform or observe any covenant, term or agreement herein set forth or set forth in any Loan Document;
6.1.3 Any representation or warranty made or deemed made by the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;
(e) any representation Document or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or which is contained in any certificate, document, opinion or other document statement furnished now or instrument delivered pursuant to or in connection with this Credit Agreement at any time shall prove to have been false be incorrect in any material respect upon on or as of the date when made or deemed to have been made or repeatedbe made;
(f) the Borrower or any of the other Transaction Parties shall fail 6.1.4 Failure to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material termObligation of any Borrower to Bank, covenant whether by maturity or agreement contained acceleration, set forth herein or in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect Loan Document;
6.1.5 Death of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice Borrower [if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofan individual(s)];
(g) the 6.1.6 A proceeding being filed or commenced against Borrower for dissolution or liquidation; or any Borrower voluntarily or involuntarily terminating or dissolving or being terminated or dissolved; insolvency of the other Transaction Parties shall make Borrower, or Borrower, or Borrower makes an assignment for the benefit of creditors, or admit a petition in writing its inability Bankruptcy or for reorganization or to pay effect a plan of arrangement with creditors is filed by Borrower; or generally fail to pay its debts as they mature Borrower applies for or become due, or shall petition or apply for permits the appointment of a receiver or trustee for any or other custodianall of its property, liquidator assets or rights, or any such receiver or trustee shall been appointed for any or all of the Borrower its property rights; or any of the above actions or proceedings whatsoever are commenced by or against any other Transaction Parties party liable for the Obligations;
6.1.7 Any attachments, liens or additional Security Interest being placed upon any of the Collateral;
6.1.8 Acquisition at any substantial time or from time to time of title to the whole or any part of the assets of the Borrower Collateral by any person, partnership or any of the corporation other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereofthan Borrower;
(h) a 6.1.9 Any final judgment, order or decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the rendered against Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, exceeding $25,000 and remaining undischarged, unsatisfied and unstayed, unstayed or outstanding against Borrower for more than thirty (30) days, any final judgment against the Borrower or any a period of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur 6.1.10 Any investigation undertaken by any strikegovernmental entity or if any indictment, lockoutcharge or proceedings is filed or commenced, labor disputewhether criminal or civil, embargo, condemnation, act pursuant to Federal or state law against Borrower for which forfeiture of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties property or assets of Borrower is a penalty;
6.1.11 Any Reportable Event occurs or if any Employee Benefit Plan is terminated or Bank reasonably believes that such event or circumstance is not covered by business interruption insurance plan may be terminated pursuant to and would have as defined in the Employee Retirement Income Securities Act of 1974, as amended; or
6.1.12 Bank reasonably deems itself insecure; the occurrence of a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 change in the event of any Event of Default specified in ss.ss.13.1(g) business, properties, prospects, operation or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.condition (financial or
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, fee or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and such failure shall continue for three (3) Business Days;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)7.1, 9 7.4, 7.5.1, 7.9, 7.14, 8 or 109;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)12.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed in an amount in excess of $5,000,000 250,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,000,000, or the Borrower shall pay an uninsured judgment or enter into one or more settlements of any litigation with the aggregate judgment and/or settlement amounts not otherwise covered by insurance of more than $1,000,000 in the aggregate;
(j) if any of the Loan Documents loan documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 500,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000500,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided -------- that the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory -49- agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral if such Collateral is not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000;
(p) the Borrower shall at any time, legally or beneficially own less than 100% of the capital stock of each Subsidiary, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of such Subsidiary; or
(pq) prior to the initial public offering of the capital stock of the Borrower (the "IPO"), the Investors shall at any time, legally or beneficially own less than fifty percent (50%) of the capital stock of the Borrower, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Borrower and subsequent to the IPO, 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 thirty twenty percent (3020%) or more of the outstanding shares of the common stock of the Borrower; or, or during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Borrower; then, and in any such event, so long as the same may be continuing, the Agent mayshall, and upon the request of the Majority Banks shallBanks, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default -------- specified in ss.ss.13.1(g(S)13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Answer Think Consulting Group Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the any Loans or any Reimbursement Obligation when 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);
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan DocumentsDocuments or any fee letter (including, within two (2without limitation, amounts due under §8.16) Business Days after the day on which when 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 and such failure continues for paymentthree (3) days;
(c) the Borrower Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of its the respective covenants contained in ss.8the following: §8.1 (except with respect to principal, 9 interest and other sums covered by clauses (a) or 10(b) above); §8.2; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) the Borrower Borrower, the Trust or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§14) and such failure continues for twenty thirty (2030) days after written notice of sucH failure has been given to the Borrower by the Agentdays;
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Trust or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other Transaction Parties of their respective Affiliates, shall fail to pay at maturity, or within any applicable period of grace, any obligations Indebtedness for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed is in excess of (i) $5,000,000 20,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $2,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is bound (excludingevidencing, however, any such term, covenant securing or agreement otherwise relating to the pledge such Indebtedness or disposition of Margin Stock)Recourse obligations, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder in excess of (i) $20,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $2,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof;
(g) any of FPLP, the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any of FPLP, the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower or any of the other Transaction Parties such parties or shall commence any case or other proceeding relating to any of the Borrower FPLP, the Trust or any of the other Transaction Parties their respective 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 any of FPLP, the Borrower Trust or any of their respective Subsidiaries and (i) any of FPLP, the other Transaction Parties and the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition petition, application, case or application other proceeding shall not have been dismissed within continue undismissed, or unstayed and in effect, for a period of forty-five (45) days following the filing thereofdays;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of FPLP, the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries 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 any of FPLP, the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any of FPLP, the Borrower Trust or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower or any of the other Transaction Parties such parties exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents or any material provision of any Loan Document shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the other Transaction Parties party thereto Trust or any of their respective stockholdersits Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(k) the Borrower any “Event of Default” or default (after notice and expiration of any ERISA Affiliate incurs any liability period of grace, to the PBGC extent provided, as defined or a Guaranteed Pension Plan pursuant to Title IV of ERISA provided in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs other Loan Documents, shall occur and be continuing;
(l) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which subject to the Borrower’s ability to remove Real Estate Assets from the Unencumbered Pool in any such case causes, for more than fifteen (15) consecutive daysaccordance with the provisions set forth below in this §14, the cessation or substantial curtailment failure of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition Real Estate Assets being included from time to time as part of the Borrower and Unencumbered Pool to comply with any of the other Transaction Parties, considered as a wholeconditions set forth in the definition of Eligible Unencumbered Properties;
(n) there shall occur the lossfailure of any two of (i) Dxxxxxx Xxxxxxxxx, suspension or revocation offor any reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or failure (ii) Nxxxxxxx X. Xxxxx, for any reason, to renewcease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) Bxxxx X. Xxxx, for any license reason, to cease to retain the titles of Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (6) months after such failure, the Board of Directors or permit now held Board of Trustees has duly elected or hereafter acquired appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Borrower Agent in writing); or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture occurrence of any assets of the Borrower transaction in which any “person” or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person or group of persons “group” (within the meaning of Section 13 or 14 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, ) becomes the “beneficial owner” (as amended) shall have acquired beneficial ownership (within the meaning of defined in Rule 13d-3 promulgated by under the Securities and Exchange Commission under said Act) Act of thirty percent (30%) 1934), directly or more indirectly, of a sufficient number of shares of all classes of stock then outstanding of the outstanding shares Trust ordinarily entitled to vote in the election of common stock directors, empowering such “person” or “group” to elect a majority of the BorrowerBoard of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or, or during any twelve-month period of twelve consecutive calendar monthson or after the Closing Date, individuals who were directors of at the Borrower on the first day beginning of such period shall cease constituted the Board of Trustees of the Trust (together with any new directors whose election by the Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the board of directors members of the Borrower or Board of Trustees of the Borrower shallTrust then in office; or
(o) without limitation of the other provisions of this §14.1, the Trust shall at any time, legally time fail to be the sole general partner of FPLP or beneficially own less than one hundred percent (100%) shall at any time be in contravention of any of the shares requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the capital stock last paragraph of Hadco Santa Clarx (on a fully diluted basis§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Agent or action by the Lenders or the Agent. Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Unencumbered Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Unencumbered Pool in accordance with, and subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default will be continuing.
Appears in 1 contract
Samples: Revolving Credit Agreement (First Potomac Realty Trust)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower Borrowers or any of the other Transaction Parties Parent, as applicable, shall fail to pay within two (2) days any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower any Obligor shall fail to comply with any of its covenants contained in ss.8inss.9, 9 10 or 1011;
(d) the Borrower or any of the other Transaction Parties Obligor shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.114.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties Obligor in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, Leases for amounts which obligations individually or in the aggregate equal or exceed $5,000,000 in the aggregate25,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 for amounts which individually or in the aggregate, aggregate equal or exceed $25,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties Obligor shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries or of any substantial part of the assets of the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries or shall commence any case or other proceeding relating to the Borrower any Obligor or any of the other Transaction Parties 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 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 any Obligor or any of the other Transaction Parties their Subsidiaries and the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Obligor or any of the other Transaction Parties 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 in respect of the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower Obligors or any of the other Transaction Parties their Subsidiaries exceeds in the aggregate $5,000,000500,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower any Obligor or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower any Obligor or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower 50,000, or any Obligor or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,00050,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower any Obligor or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 50,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeits Subsidiaries;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholesuch Obligor or such Subsidiary;
(o) the Borrower any Obligor or any of the other Transaction Parties their Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower any Obligor or any the other Transaction Partiesof their Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower such Obligor or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of such Obligor or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000100,000; or
(p) any person the Xxxxx Corporation, or group of persons (within the meaning of Section 13 an entity spun off pro-rata to Xxxxx Corporation shareholders, Xxxxx Xxxxxxx, and/or other entities controlled, directly or 14 of the Securities Exchange Act of 1934indirectly, as amended) by Xxxxx Xxxxxxx 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own beneficially, directly or indirectly, have collectively less than fifty percent (50%) of the voting power of the common stock of the Parent, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Parent or the Parent shall cease to own, directly or indirectly, one hundred percent (100%) of the shares of the capital common stock of Hadco Santa Clarx (on a fully diluted basis)any other Obligor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gss.ss.14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Morgan Group Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its respective covenants contained in ss.8Sections 9.5, 9 9.7.1, 9.9, 10 or 10;11 (except as to the covenants contained in Section 10.7, for which the Borrower's failure to comply shall only be deemed an Event of Default should the Borrower fail to cure the failure within the earlier of thirty (30) days or the time period required by Environmental Laws), with any of its covenants contained in Section 9.4 for a period in excess of five (5) days, or with any of the covenants contained in any of the Mortgages for three (3) days.
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 14.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate500,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount in excess of $5,000,000 in the aggregate, 500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any of the other Transaction Parties its Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000500,000;
(j) the holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the Subordinated Debt in whole or in part shall have been made;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 500,000 or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000500,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the other Transaction Parties its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(op) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000500,000; or
(pq) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 14.1(g), 14.1(h) or 13.1(h14.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
Events of Default and Acceleration. If (a) Events of Default Defined. The entire unpaid principal amount of this Note, together with interest thereon shall, on written notice to the Company given by the holders of this Note, forthwith become and be due and payable if any of one or more the following events ("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 have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or be affected or come about by operation of law pursuant to or in compliance with any judgment, decree, or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing. An Event of Default shall occur:
(ai) if failure shall be made in the Borrower shall fail to pay any payment of the principal of the Loans or any Reimbursement Obligation interest on this Note when and as the same shall become due and payable, whether at the stated date such failure shall continue for a period of maturity or any accelerated date of maturity or at any other date fixed for payment;ten (10) business days after such payment is due; or
(bii) if the Borrower Company shall violate or breach any of the covenants contained in the Note or any of the other Transaction Parties shall fail covenants in the Purchase Agreement that relate to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any a payment obligation of the other Loan Documents, within two Company and such violation or breach shall continue for thirty (2) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (2030) days after written notice of sucH failure has such breach shall have been given received by the Company from Payee; or
(iii) if the Company or any Material Subsidiary shall consent to the Borrower by the Agent;
(e) any representation appointment of a receiver, trustee or warranty liquidator of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof itself or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower a substantial part of its property or any of the other Transaction Parties shall make an a general assignment for the benefit of creditors, or admit shall file a voluntary petition in writing its inability to pay bankruptcy, or generally fail to pay its debts an answer seeking reorganization in a proceeding under any bankruptcy law (as they mature now or become duehereafter in effect) or an answer admitting the material allegations of a petition filed against the Company or any Material Subsidiary, in any such proceeding, or shall petition by voluntary petition, answer or apply consent, seek relief under the provisions of any other now existing or future bankruptcy or other similar law providing for the appointment reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, or shall, in a petition in bankruptcy filed against it or them be adjudicated a bankrupt, or the Company or any Material Subsidiary or their directors or a majority of its stockholders shall vote to dissolve or liquidate the Company or any Material Subsidiary other than a liquidation involving a transfer of assets from a Subsidiary to the Company or another Subsidiary; or
(iv) if an involuntary petition shall be filed against the Company or any Material Subsidiary seeking relief against the Company or any Material Subsidiary under any now existing or future bankruptcy, insolvency or other similar law providing for the reorganization or winding up of corporations, or an arrangement, composition, extension or adjustment with its or their creditors, and such petition shall not be vacated or set aside within ninety (90) days from the filing thereof; or
(v) if a court of competent jurisdiction shall enter an order, judgment or decree appointing, without consent of the Company or any Material Subsidiary, a receiver, trustee or other custodian, liquidator or receiver of the Borrower Company or any of the other Transaction Parties Material Subsidiary, or of all or any substantial part of the assets property of the Borrower Company or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties bankrupt or insolventMaterial Subsidiary, or approving a petition in filed against the Company or any such case Material Subsidiary seeking a reorganization or other proceeding, or a decree or order for relief is entered in respect arrangement of the Borrower Company or any Material Subsidiary under the Federal bankruptcy laws or any other applicable law or statute of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower United States of America or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the BanksState thereof, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any substantial part of the Loan Documents property of the Company or any Material Subsidiary shall be commenced by sequestered; and such order, judgment or on behalf decree shall not be vacated or set aside within ninety (90) days from the date of the Borrower entry thereof; or
(vi) if, under the provisions of any law for the relief or any aid of the other Transaction Parties party thereto or any of their respective stockholdersdebtors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, assume custody or issue a judgment, order, decree or ruling to the effect that, any one or more control of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower Company or any ERISA Affiliate incurs any liability to the PBGC Material Subsidiary or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower all or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV substantial part of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, the property of the Company or any Material Subsidiary and such custody or control shall not be terminated within ninety (90) days from the date of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination assumption of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan custody or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bankcontrol.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) any of the Borrower Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to comply with perform any of its covenants other term, covenant or agreement contained in ss.8§9.1, 9 §9.2, §9.3, §9.4 or 10§9.5 applicable to such Person;
(d) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay when due (including without limitation at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption or purchase thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $5,000,000.00 or Non-Recourse Indebtedness totaling in excess of $20,000,000.00;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if ; provided that the events described in this §12.1(g) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $25,000,000 or in the aggregate exceeds $50,000,000;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof; provided that the events described in this §12.1(h) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $25,000,000 or in the aggregate exceeds $50,000,000;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; provided that the events described in this §12.1(i) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $25,000,000 or in the aggregate exceeds $50,000,000;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against Parent, the Borrower or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of Parent, the Borrower or any ERISA Affiliate incurs of their respective Subsidiaries shall occur or any liability to sale, transfer or other disposition of the PBGC or a Guaranteed Pension Plan pursuant to Title IV assets of ERISA in an aggregate amount exceeding $2,000,000; any of Parent, the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or any of the following occurs other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 5,000,000.00 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renewBorrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the other Transaction Parties if such lossforfeiture of (i) any assets of Borrower, suspension, revocation any Guarantor or failure any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on Material Adverse Effect, or (ii) the business Collateral or financial condition any Eligible Real Estate or Eligible Note Receivable included in the calculation of the Borrower and the other Transaction Parties, considered as a wholeBorrowing Base Value;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against agreement under the Borrower Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person or group Change of persons Control shall occur;
(within the meaning q) an Event of Section 13 or 14 Default under any of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borroweroccur; or
(r) the occurrence of any event, during any period of twelve consecutive calendar months, individuals who were directors of act or condition which the Borrower on the first day of such period shall cease Required Lenders determine either does or is highly likely to constitute cause a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Material Adverse Effect; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Loan have been satisfied, the Lenders will cause a Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
Events of Default and Acceleration. If any of the following ---------------------------------- events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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, and such failure shall continue for three (3) days;
(c) the Borrower or any of its Restricted Subsidiaries shall fail to comply with any of its the covenants contained in ss.8ss.ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Restricted Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received (including the CSX Remaining Debt) or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received (including without limitation, the CSX Remaining Debt) or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Restricted Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Restricted Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties its Restricted 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 the other Transaction Parties its Restricted Subsidiaries and the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties its Restricted Subsidiaries 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 any of the Borrower or any Restricted Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Restricted Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Restricted Subsidiaries exceeds in the aggregate $5,000,000500,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its Restricted 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Restricted Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Restricted Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered its Restricted Subsidiaries taken as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Restricted Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered its Restricted Subsidiaries taken as a whole;
(o) the Borrower or any of the other Transaction Parties its Restricted Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Restricted Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the such Borrower or such other Transaction Party Restricted Subsidiary having a fair market value in excess of $1,000,000500,000; or
(pi) the Xxxxxx Immediate Family shall, at any time, cease to maintain beneficial ownership and control of at least twenty-five percent (25%) of the voting interests of the Borrower, (ii) 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 -71- Securities and Exchange Commission under said Act) of thirty more than twenty-five percent (3025%) or more of the outstanding shares of the common stock of the Borrower; or, (iii) during any period prior of twelve consecutive calendar months, individuals who were 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 Borrower, or (iv) the Borrower shall, shall at any time, legally time own directly or beneficially own indirectly less than one hundred percent (100%) % of the shares of the capital stock or partnership interests, as the case may be, of Hadco Santa Clarx (on a fully diluted basis)each of the Restricted Subsidiaries, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of such Person except that the Borrower may own only 454 shares of the 458 shares of the issued and outstanding capital stock of Dansville; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the -------- event of any Event of Default specified in ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any the then unpaid principal of the Credit Loans when the same shall become due and payable, whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment (other than as set forth in Section 3.2.1, which failure to pay is dealt with in Section 13.1 (m) hereof);
(b) the Borrower shall fail to pay (i) on any Payment Date any interest on the Credit Loans or any Reimbursement Obligation when Fees then due and payable, or (ii) other sums due hereunder or under any of the other Loan Documents, within three (3) Business Days of the date 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;
payment (b) the Borrower or any of the other Transaction Parties shall fail than as set forth in Section 3.2.1, which failure to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two is dealt with in Section 13.1 (2m) Business Days after the day on which 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 paymenthereof);
(c) the Borrower shall fail to comply (i) with any of its covenants contained in ss.8Section 9 (with the exception of Section 9.7), 9 or (ii) within ten (10) days after the delivery dates required therein, with any of its covenants contained in Sections 8.4 or 8.9;
(d) the Borrower shall default in the observation or performance of any other covenant (not otherwise covered by Section 13.1) of the other Transaction Parties shall fail to perform any term, covenant Borrower set forth in this Credit Agreement or agreement contained herein or in any of the other Loan Documents Document, which continues for a period of thirty (other than those specified elsewhere in this ss.
13.1) for twenty (2030) days after the earliest of (x) any Senior Executive Officer of the Borrower, first acquiring knowledge thereof, (y) the Agent’s giving written notice of sucH failure has been given thereof to the Borrower, or (z) any Lender giving written notice thereof to the Borrower by and the Agent;.
(e) any representation or warranty of the Borrower or any the Seller (other than, in the case of the other Transaction Parties in this Credit Agreement or any of Seller, the other Loan Documents or Container Representations and Warranties) made in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Loan Document shall prove to have been false be incorrect in any material respect upon as of the date time when made or deemed to the same shall have been made which continues and if capable of cure, the continuance of such condition for a period of thirty (30) days after the earliest of (i) any Senior Executive Officer of the Borrower or repeatedthe Seller, as the case may be, first acquiring knowledge thereof, (ii) the Agent’s giving written notice thereof to the Borrower or the Seller, as the case may be, or (iii) any Lender giving written notice thereof to the Borrower or the Seller, as the case may be, and the Agent;
(f) the Borrower or any All of the other Transaction Parties following: (A) a Manager Default shall fail to pay at maturityhave occurred and be continuing, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if requiredB) the holder Required Lenders have notified the Manager of their intent to locate a successor Manager in accordance with the terms of the Loan Documents and (C) no successor Manager shall have assumed the duties of the Manager pursuant to a successor management agreement in accordance with the terms of the Management Agreement and the other Loan Documents within the earlier of (i) sixty (60) days from the date on which the Required Lenders shall notify the Manager of their intent to locate a successor Manager in accordance with the terms of the Loan Documents and at any time during such sixty (60) day period a Borrowing Base Deficiency shall exist or holders thereof or (ii) ninety (90) days from the date which the Required Lenders shall notify the Manager of any obligations issued thereunder their intent to accelerate locate a successor Manager in accordance with the maturity thereofterms of the Loan Documents;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws any Insolvency Law as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) consecutive days, any final judgment against the Borrower or any of the other Transaction Parties not covered by insurance that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties not covered by insurance exceeds in the aggregate $5,000,000250,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or if the Agent’s security interests, mortgages or liens in 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersmembers or stockholders (as the case may be), or any court of competent jurisdiction 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 250,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000250,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(1) of ERISA), provided provided, that the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) CLI shall at any time (i) own less than all of the Capital Stock of the Borrower unless waived by the Required Lenders or any (ii) fail to have sole control of the other Transaction Parties shall be enjoinedBorrower and, restrained or in any way prevented legally and beneficially, own less than a majority of 51% of Capital Stock of the Borrower unless waived by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) daysRequired Lenders;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any the Aggregate Note Principal Balance exceeds the Borrowing Base at such case causes, for more than fifteen time and the Borrower does not remedy such situation (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility by payment of the Borrower amount set forth in Section 3.2 or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;otherwise) within sixty (60) days; or
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) if on any Determination Date, the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty Utilization Ratio is less than sixty percent (3060%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided, that in the event of any Event of Default specified in ss.ss.13.1(gSections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankLender.
Appears in 1 contract
Samples: Credit Agreement (Seacastle Inc.)
Events of Default and Acceleration. If Time is of the essence of this Note. The occurrence of any of the following events ("Events shall constitute an “Event of Default" or” hereunder: (i) Xxxxxxxx's failure to pay timely any amount due hereunder, and such failure continues for ten (10) business days; (ii) bankruptcy, reorganization, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against Borrower and, if the giving of notice or the lapse of time or both is requiredinstituted against Borrower, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail by any action or answer approve of, consent to pay or acquiesce in any principal such proceedings or admit the material allegations of, or default in answering a petition filed in any such proceeding or such proceedings shall not be dismissed within ninety (90) calendar days thereafter; (iii) any material breach by Borrower, that remains uncured for greater than 5 days after receipt of the Loans or any Reimbursement Obligation when the same shall become due and payablewritten notice of same, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter terms of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents this Note (other than those specified elsewhere in this ss.
13.1payment obligations) for twenty (20) days after written notice of sucH failure has been given to or the Warrants issued by Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension PlanNote; (iiiv) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock dissolution of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors or (v) cessation or liquidation of the Borrower on the first day of such period shall cease to constitute a majority Borrower's business or suspension of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less Borrower's business for more than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in forty-five consecutive days. If any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) occurs, Holder may, then or 13.1(h)at any time thereafter, all such amounts shall and at its option, accelerate maturity and cause the entire unpaid principal balance of this Note, together with interest accrued hereon, to become immediately due and payable automatically and without any requirement payable. If Holder waives Holder's right to accelerate maturity as a result of notice from an Event of Default hereunder, either one or more times or repeatedly, nevertheless Holder shall not be deemed to have waived the Agent or any Bankright to require strict compliance with the terms of this Note thereafter.
Appears in 1 contract
Samples: Secured Convertible Promissory Note (Lifesciences Opportunities Inc)
Events of Default and Acceleration. If any of the following ---------------------------------- events ("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:
(a) the any Borrower shall fail to pay any principal of the its Loans or the US Borrower shall fail to pay any Reimbursement Obligation when 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;
(b) the any Borrower or any of the other Transaction Parties shall fail to pay any interest on the its Loans, the commitment feeCommitment Fee, any Letter of Credit Fee, the Agent's feeAgents' Fees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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, and such failure shall continue for three (3) days;
(c) any of the Borrower Borrowers or any of their Restricted Subsidiaries shall fail to comply with any of its the covenants contained in ss.8(S)(S)9, 9 10 or 1011;
(d) any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the applicable Borrower by the applicable Agent;
(e) any representation or warranty of any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) any of the Borrower Borrowers or any of the other Transaction Parties their Restricted Subsidiaries shall fail to pay at maturitywhen due, or within any applicable period of grace, any obligations obligation for borrowed money or credit received (including without limitation the CSX Remaining Debt) or in respect of --------- any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received (including without limitation, the CSX Remaining Debt) or in respect of --------- any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Events of Default and Acceleration. If any of the following events ("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:: (
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
; (b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's facility fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8sect.sect.6, 9 7 or 10;
8; (d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1sect.11) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
; (e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
; (f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of capital stock of the Borrower or other Margin Stock for so long as such stock constitutes Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
; (g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
; (i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
1,000,000; (j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
; (k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
; (l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
; (m) there shall occur any material damage to, or loss, theft or destruction of, any assets of the Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as its Subsidiaries on a whole;
consolidated basis; (n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as its Subsidiaries on a whole;
consolidated basis; (o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party and its Subsidiaries having a fair market value in excess of $1,000,0005,000,000; or
or (p) (i) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended, but other than Jxx Xxxxxx and/or Rxxxxxx Xxxxxx) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty twenty percent (3020%) or more of the outstanding shares of common stock of the Borrower; or, (ii) Jxx Xxxxxx and/or Rxxxxxx Xxxxxx shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of twenty-five percent (25%) or more of the outstanding shares of common stock of the Borrower; or (iii) during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.twelve
Appears in 1 contract
Samples: Revolving Credit Agreement (New England Business Service Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loan or any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10§9.1 and such failure shall continue for five (5) days after written notice thereof shall have been given to the Borrower by the Agent;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4 or §9.5;
(e) the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for an Advance or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or to require the prepayment, purchase or redemption thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000.00;
(gh) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower, any final judgment against the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersa Guarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the Borrower good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect, or such other Transaction Party having a fair market value (ii) the assets included in excess the calculation of $1,000,000; orthe Unencumbered Asset Value;
(p) any person Guarantor denies that it has any liability or group of persons (within obligations under the meaning of Section 13 Guaranty or 14 any other Loan Document, or shall notify the Agent or any of the Securities Exchange Act Lenders of 1934such Guarantor’s intention to attempt to cancel or terminate the Guaranty or cancel the Contribution Agreement or any other Loan Document, as amendedor shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document; or
(q) shall have acquired beneficial ownership (within the meaning an Event of Rule 13d-3 promulgated by the Securities and Exchange Commission Default under said Act) of thirty percent (30%) or more any of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period other Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Lenders or any Bankthe Agent.
Appears in 1 contract
Samples: Term Loan Agreement (Dupont Fabros Technology, Inc.)
Events of Default and Acceleration. If Upon the occurrence and during the continuance of any of the following events ("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:events,
(a) the Borrower shall fail to pay any principal of the Loans or Loans, any Reimbursement Obligation when the same shall become due and payableArrangement Fee, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due sum hereunder or under any of the other Loan DocumentsDocuments to which it is a party, in any such case within two (2) Business Days three days after the day date on which 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;; or
(cb) the Borrower shall fail to comply with any of its the covenants contained in ss.8Article VII or (S)6.10, 9 6.14(i) or 10;6.15; or
(dc) Parent or the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)10.01) and such failure shall continue for twenty (20) days after written notice a period of sucH failure has been given to the Borrower by the Agent;30 days; or
(ed) any representation or warranty of the Borrower or any of Parent under the other Transaction Parties in this Credit Loan Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement or any Loan Document shall prove to have been false not be correct in any material respect upon the date when made or deemed to have been made or repeated;; or
(fe) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;shall
(gi) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or
(ii) generally not pay its debts as such debts become due or admit in writing its inability to generally pay or generally fail to pay its debts as they mature or become due, or shall or
(iii) petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or Borrower, or
(iv) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdictionjurisdiction providing for the relief of debtors, now or hereafter in effect, or or
(v) 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not be able to have such proceeding dismissed within 30 days thereof or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or the Borrower or Parent shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) the Borrower shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal amount of at least $5 million in the aggregate (but excluding Indebtedness outstanding hereunder) of the Borrower, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature; or any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; or
(g) any judgment or order for the payment of money in excess of $1,000,000 (excluding any portion thereof that an insurance company of recognized standing and creditworthiness has agreed to pay) shall be rendered against the Borrower and either
(i) enforcement proceedings shall have been dismissed within forty-five commenced by any creditor upon such judgment or order, or
(45ii) there shall be any period of 30 consecutive days following the filing thereof;during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective its stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;; or
(ki) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or appointed a trustee to administer or liquidate any plan; or
(j) the Borrower shall be the subject of writs of attachment or garnishment and the like that might have a Material Adverse Effect and that are unstayed for a period of 30 consecutive days or any such attachment shall not have been bonded over within 30 days of the entry thereof; or
(k) the FCC or any other Governmental Body shall cancel, revoke or suspend any of the Borrower's material Licenses for the New York PCS Network or fails to renew any such License; or
(l) the Borrower FCC or any other Governmental Body shall commence any proceeding to cancel, revoke or suspend any of the other Transaction Parties shall Borrower's material Licenses for the New York PCS Network which proceeding for the cancellation, revocation or suspension (i) could reasonably be enjoined, restrained expected to have a Material Adverse Effect and (ii) has not been stayed or in any way prevented enjoined by the order Borrower within five business days after the commencement of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;proceeding; or
(m) the Borrower shall fail to pay when due amounts owing the FCC unless (i) the Borrower's failure to pay can reasonably be expected, in the sole judgment of Required Lenders, not to result in any cancellation, revocation or suspension of the Borrower's License for the New York PCS Network or (ii) the Borrower has obtained a stay or injunction against any action by the FCC to cancel, revoke or suspend such License notwithstanding the Borrower's failure to pay; or
(n) the Collateral Agent shall cease to have a valid and perfected first-priority Lien on any Collateral securing the Borrower's obligations hereunder (or, in the case of Collateral pledged by Parent, Parent's guaranty of the Borrower's obligations hereunder), or the Borrower or Parent shall so assert; or
(o) at any time any of the following shall occur:
(i) Grand Parent shall cease to have legal and beneficial title, directly or indirectly through one or more subsidiaries all of the issued and outstanding shares of capital Stock are owned by it, at least a majority of the Voting Stock of the Borrower then outstanding;
(ii) any person (other than Ericsson and its affiliates) engaged in, or having an Affiliate engaged in, the business of manufacturing, selling or distributing telecommunications equipment shall own, directly or indirectly and as legal or beneficial owner, more than 30% of the Voting Stock of the Borrower then outstanding;
(iii) at least 95.6% of each series and class of issued and outstanding shares of capital Stock of the Borrower shall not be pledged as security for the Borrower's obligations hereunder and under the other Loan Documents, or as security for the obligations of Parent under the Parent Guaranty; or
(iv) any sale of capital Stock of the Borrower held by Parent or any other shareholder (other than Associated PCN Company), or any sale of capital Stock of the Parent, shall occur, in either case for consideration other than cash, or in either case unless the Borrower shall receive the entire Net Cash Proceeds of such sale; or
(p) there shall occur in the judgment of the Required Lenders any strikechange in the business, lockoutcondition (financial or otherwise), labor disputeoperations, embargoperformance, condemnation, act of God properties or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility prospects of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would that could reasonably be expected to have a material adverse effect on the business or financial condition ability of the Borrower to perform its obligations under the Loan Agreement and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000related documents; or
(pq) the Borrower shall default, after any person applicable grace period, under any equipment-acquisition agreement (other than the Supply Agreement) providing for the purchase of more than $10,000,000 in aggregate purchase price of equipment or group of persons (within the meaning of Section 13 other goods, from any Person, or 14 of the Securities Exchange Act of 1934, as amended) such Person 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 more of the outstanding shares of common stock of the Borrowerso allege in writing; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day
(r) as of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); date * then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrower, (i) declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and/or (ii) declare the Notes, all interest thereon and all other amounts owing with respect to payable under this Credit Agreement, the Notes Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all such interest and all Reimbursement Obligations to be, such amounts shall become and they shall thereupon be forthwith become, immediately due and payable payable, without presentment, demand, protest or other further notice of any kind, all of which are hereby expressly waived by the Borrower; PROVIDED provided that in upon the event occurrence -------- ------------- * Confidential information has been omitted and filed separately with the Commission. of any an Event of Default specified in ss.ss.13.1(gunder subsection (e) or 13.1(h)above, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Notes, all such interest and all such amounts shall automatically become immediately and be due and payable automatically and payable, without any requirement of notice from the Agent presentment, demand, protest or any Banknotice of any kind, all of which are hereby expressly waived by the Borrower.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Events of Default and Acceleration. If any of the following events ("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:
(a) the either Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx shall fail to pay any interest on the Loans, the commitment facility fee, any the Administrative Agent's and Arranger's fees, the Letter of Credit Fee, the Agent's fee, Fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) Xxxxx Xxxxxxxxx shall fail to comply with any covenants in the Beckerman Guaranty;
(d) either Borrower shall fail to comply with any of its covenants contained in ss.8xx.xx. 8, 9 or 10;
(de) the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the such Borrower by the Administrative Agent;
(ef) any representation or warranty of the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the either Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of gracegrace (not to exceed thirty (30) days), any obligations obligation in excess of $500,000 for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing an amount presently outstanding in excess of $500,000 in respect of borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or such Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx or of any substantial part of the assets of the Borrower or such Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx or shall commence any case or other proceeding relating to the Borrower or such Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx 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 such Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx and the Borrower or such Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx shall indicate its approval thereof, consent thereto or thereto, acquiescence therein or such petition or application shall not have been dismissed within forty-five otherwise remain undismissed for a period of sixty (4560) days following the filing thereofdays;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx 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 such Borrower, any Subsidiary of such Borrower or any of the other Transaction Parties Xxxxx Xxxxxxxxx in an involuntary case under federal bankruptcy laws as now or hereafter constitutedconstituted (which order is not dismissed within sixty (60) days after the entry thereof);
(ij) there shall remain in force, undischarged, unsatisfied and unstayedunsatisfied, unstayed for more than thirty (30) days, whether or not consecutive, any final judgment (unless bonded pending appeal) against the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries exceeds in the aggregate $5,000,000500,000;
(jk) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or either Borrower, any of the other Transaction Parties its Subsidiaries or Xxxxx Xxxxxxxxx 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrowers or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lm) the either Borrower or any of the other Transaction Parties its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or -47- regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the either Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the such Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeSubsidiary;
(o) the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower Borrowers or such other Transaction Party Subsidiaries, such assets of the Borrowers or such Subsidiaries having a fair market value in excess of $1,000,000; or100,000;
(p) the Borrowers or any person or group of persons (within their Subsidiaries shall be in default under any Material Licensing Agreement and such default shall not have been cured to the meaning of Section 13 or 14 satisfaction of the Securities Exchange Act licensor under such Material Licensing Agreement, or any of 1934, as amended) such Material Licensing Agreements shall have acquired beneficial ownership been terminated or not renewed (within other than Material Licensing Agreements which relate to specific special events (i.e. Olympics) that mature by their terms);
(q) the meaning Borrowers or any of Rule 13d-3 promulgated by their Subsidiaries shall lose any other license, permit, lease or other agreement, the Securities and Exchange Commission under said Actloss of which would reasonably be expected to have, individually or in the aggregate, a material adverse effect on either Borrower or any of its Subsidiaries;
(r) Xxxxx Xxxxxxxxx shall, at any time, legally or beneficially own less than fifty-one percent (51%) of thirty percent (30%) or more of the issued and outstanding shares of common capital stock of Starter, on a fully diluted basis;
(s) Starter and/or the Borrower; or, during any period wholly owned Subsidiaries of twelve consecutive calendar months, individuals who were 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 or the Borrower Starter shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the issued and outstanding capital stock of Hadco Santa Clarx (each of Starter Galt, Starter Europe, Far East and Starter Outlet on a fully diluted basis); or
(t) Xxxxx Xxxxxxxxx shall die or become legally incapacitated; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gss.ss.13.1(h), 13.1(i) or 13.1(h13.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender; provided further that in the event of any Event of Default specified in ss.ss.13.1(h), 13.1(i) or 13.1(k), the Total Commitments of the Lenders shall immediately terminate and all such amounts owing shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or the Lenders. No remedy herein conferred upon the Lenders 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.
Appears in 1 contract
Samples: Credit Agreement (Starter Corp)
Events of Default and Acceleration. If any of the following events ("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:
(a) S82.1. the Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity or any Reimbursement Obligation accelerated date of maturity or at any other date fixed for payment, including, without limitation, any mandatory prepayments required pursuant to S2.7 hereof;
S82.2. the Borrower shall fail to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) S82.3. the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower S8 hereof or any of the other Transaction Parties covenants contained in the Loan Documents;
S82.4. the Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1S11) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the AgentBank;
(e) S82.5. any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) S82.6. the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregatereceived, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) S82.7. the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) S82.8. a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Litchfield Financial Corp /Ma)
Events of Default and Acceleration. If Upon the occur ---------------------------------- rence and during the continuance of any of the following events (each an "Events Event 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:),
(a) the Borrower Company shall fail to pay (i) any principal of the Loans Notes when due or (ii) any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity fee payable pursuant to Section 15.1 or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Notes or any Letter of Credit Fee, the Agent's fee, or other sums due sum hereunder or under any of the other Loan DocumentsNote Documents to which it is a party, in each such case, with respect to this clause (ii), within two (2) Business Days three days after the day date on which 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;; or
(cb) Grand Parent or the Borrower Company shall fail to comply with any of its the covenants contained in ss.8Section 7.1(h), 9 9.14 or Article 10;; or
(dc) the Borrower or any of the other Transaction Parties Omnipoint Note Party shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Note Documents (other than those specified elsewhere in this ss.
13.1Section 11.1) and such failure shall continue for twenty (20) a period of 30 consecutive days after the earlier of (i) written notice of sucH failure has been given to thereof from the Borrower Required Secured Parties or (ii) actual knowledge thereof by the Agent;such Omnipoint Note Party; or
(ed) any representation or warranty of the Borrower or any of the other Transaction Parties in Omnipoint Entity under this Credit Agreement or any of the other Loan Note Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement or any Note Document shall prove to have been false not be correct in any material respect upon the date when made or deemed to have been made or repeated;; or
(fi) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;Significant Entity shall
(gA) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or
(B) generally not pay its debts as such debts become due or admit in writing its inability to generally pay or generally fail to pay its debts as they mature or become due, or shall or
(C) petition or apply for the appointment appoint ment of a trustee or other custodian, liquidator or receiver of the Borrower for itself or any of the other Transaction Parties or of for any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, or
(D) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangementar rangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdictionjurisdiction providing for the relief of debtors, now or hereafter in effect, or shall take
(ii) any action to authorize or in furtherance of any of the foregoing, or if any such petition or application described in (i)(C) or (D) above shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of the other Transaction Parties Significant Entity and the Borrower or (x) any of the other Transaction Parties Signif icant Entity shall indicate its approval thereof, consent thereto or acquiescence therein therein, or (y) such petition petition, application or proceeding is not dismissed within 45 days thereof, or (z) any of the actions sought in such petition, application or proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or
(iii) any Significant Entity shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) any Significant Entity shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebt edness that is outstanding in a principal amount of at least $10 million in the aggregate (but excluding Indebtedness outstanding hereunder and Indebted ness owed to the FCC), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness of any Significant Entity, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature; or any such Indebted ness of any Significant Entity shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, other than (i) the redemption or repurchase of not more than [*] of Senior Notes as permitted in the last sentence of the definition of "Change of Control" in and (ii) from the Net Cash Proceeds of asset sales, or equity or debt issuances, in each case prior to the stated maturity thereof; or
(g) any final judgment or order for the payment of money in an amount of [*] or more (excluding any portion thereof that an insurance company of recognized standing and creditworthiness reasonably satisfactory to the Required Holders has agreed to pay) shall be rendered against one or more Significant Entities and shall not be paid, discharged or bonded and either
(i) enforcement proceedings shall have been dismissed within forty-five commenced by any creditor upon such judgment or order, or
(45ii) there shall be any period of 30 consecutive days following the filing thereof;during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Note Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksHolders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Note Documents shall be commenced by or on behalf of the Borrower any Omnipoint Entity, or any Guarantor shall assert that its respective guaranty of the other Transaction Parties party thereto or any Obligations of their respective stockholdersthe Company is invalid, 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 effect that, any one or more of the Loan Note Documents is illegal, invalid or unenforceable in any material respect in accordance with the terms thereof;; or --------------------------------------------------------------------------- * CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
(ki) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Secured Creditors shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Grand Parent or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding of $2,000,000 and (B) could constitute grounds for the termination of such Plan 10,000,000 or more; or a trustee shall have been appointed by the PBGC, for the appointment by the appropriate United States District Court of to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan or appointed a trustee to administer such Plan or for the imposition of liquidate any plan; or
(j) any Environmental Claim shall have been asserted against any Omnipoint Entity or any Environmental Affiliate thereof which, if determined adversely, could reasonably be expected to have a lien in favor of the Guaranteed Pension Plan; Material Adverse Effect, (ii) any release, emission, discharge or disposal of any Material of Environmental Concern shall have occurred, and such event could form the appointment by basis of an Environmental Claim against any Omnipoint Entity or any Environmental Affiliate thereof which, if determined adversely, could have a United States District court of a trustee to administer such Plan; Material Adverse Effect, or (iii) any Omnipoint Entity or its Environmental Affiliate shall have failed to obtain any Environmental Permit necessary for the institution management, use, control, ownership, or operation of its business, property or assets or any such Environmental Permit shall be revoked, terminated, or otherwise cease to be in full force and effect, in each case, if the existence of such condition could have a Material Adverse Effect;
(k) the FCC or any other Governmental Body shall cancel, revoke or suspend (i) any of the Company's Licenses for the New York PCS Network, or any License held by the PBGC License Subsidiary, or fail to renew any such License or (ii) any other License or group of proceedings Licenses held by Grand Parent or any of its Significant Subsidiaries (other than "C" Block Licenses) the loss of which could reasonably be expected to terminate such Plan;have a Material Adverse Effect on Grand Parent and its Significant Subsidiaries, taken as a whole; or
(l) the Borrower FCC or any other Governmental Body shall commence any proceeding to cancel, revoke or suspend any of the other Transaction Parties shall Company's or the License Subsidiary's Licenses for the New York PCS Network which proceeding for the cancellation, revocation or suspension (i) could reasonably be enjoined, restrained expected to have a Material Adverse Effect and (ii) has not been stayed or in any way prevented enjoined by the order Company or the License Subsidiary within five business days after the commencement of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;proceeding; or
(m) there the Company or the License Subsidiary shall occur any strikefail to pay when due amounts owing the FCC unless (i) such failure to pay can reasonably be expected, lockoutin the sole reasonable judgment of the Required Secured Creditors, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which not to result in any such case causescancellation, for more than fifteen (15) consecutive days, the cessation revocation or substantial curtailment suspension of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if Company's or the License Subsidiary's Licenses for the New York PCS Network or (ii) the Company or the License Subsidiary has obtained a stay or injunction against any action by the FCC to cancel, revoke or suspend such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;License notwithstanding such failure to pay; or
(n) there the Collateral Agent shall occur cease to have a valid and perfected first-priority Lien on any Collateral (subject only to Permitted Liens) securing the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any Obligations of the other Transaction Parties if Company (or in the case of Collateral pledged by Parent, License Subsidiary, OHI or OIT, each such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition Person's respective guaranty of the Borrower and Obligations of the other Transaction PartiesCompany) or the Company, considered as a whole;Parent, License Subsidiary, OHI or OIT shall so assert; or
(o) the Borrower or any a Change of the other Transaction Parties Control shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bankoccur.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("Events of Default" or, if the giving of notice or the lapse of time or both notice and lapse of time is required, then, prior to such notice or and/or lapse of time, "Defaults") shall occur:
(a) if the Borrower or the Canadian Borrower shall fail to pay default in the payment of any (i) principal of the Loans hereunder or under any Reimbursement Obligation Note when 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;
payment or prepayment or by declaration as a result of a Default or Event of Default or otherwise or (bii) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums amounts due hereunder or under any of the other Loan Documents, Note within two (2) Business Days after the day on which of when 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;payment or prepayment or by declaration as a result of a Default or Event of Default or otherwise; or
(b) if the Borrower shall default in the performance of or compliance with the covenants set forth in Section 12 hereof; or
(c) if the Borrower shall fail to comply default in the payment or performance of or compliance with any other liability, obligation or covenant hereunder other than those specifically referenced in this Section 13.1 and such default shall not have been remedied within 20 days after written notice thereof shall have been given to the Borrower by the Administrative Agent (which notice the Administrative Agent shall give to the Borrower upon the written instruction of its covenants contained in ss.8, 9 or 10;the Majority Banks); or
(d) if any representation or warranty made by the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained its Subsidiaries herein or in any of the other Loan Documents (or in any certificate or other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given writing at any time delivered to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement Banks pursuant hereto or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false or incorrect in any material respect upon on the date when made or deemed to have been made or repeated;as of which made; or
(fe) if the Borrower or any of its Subsidiaries shall default (as principal or guarantor or other surety) in the other Transaction Parties shall fail to pay at maturitypayment of any principal of or premium, if any, or within interest on any Indebtedness for borrowed money or in respect of capitalized leases equal to or in excess of $2,500,000 in the aggregate, or with respect to the performance of any of the terms of any evidence of such Indebtedness or any agreement relating thereto, such default shall continue for longer than the applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leasesif any, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 specified therein and no waiver shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000thereto; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a1) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b2) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, Documents within two three (23) Business Days days after the day on which 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 paymentpayment or otherwise;
(c3) the Borrower shall fail to comply with any of its covenants contained in ss.8Section 9.1, 9 9.2, 9.4, 9.5, 9.9, 9.12, 9.14, 9.16, 10 or 1011;
(d4) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 14.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e5) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f6) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received received, or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, an amount in excess of [**]; or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, an amount in excess of [**] for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g7) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. the Borrower or any of the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) 8) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i9) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds all amounts covered by insurance in the aggregate $5,000,000[**];
(j10) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k11) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; [**], or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000[**], or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 [**] and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Aztec Technology Partners Inc /De/)
Events of Default and Acceleration. If any of the following events ("“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:
(a) : the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) ; the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) ; the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10;
§9.1 and such failure shall continue for five (d5) Business Days after written notice thereof shall have been given to the Borrower or any of by the other Transaction Parties Agent; the Borrower shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4 or §9.5; the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agent;
(e) other Loan Documents); any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) ; any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contracts), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contracts) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or to require the settlement, termination, prepayment, purchase or redemption thereof;
; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve (gi) in respect of Recourse Indebtedness, singly or in the Borrower aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $50,000,000.00 or (ii) in respect of Non-Recourse Indebtedness, singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $75,000,000.00; the Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator liquidator, monitor, receiver, receiver-manager, or receiver of the Borrower similar official for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effectInsolvency Law, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ; a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator, receiver, monitor, receiver-manager, or similar official of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower or any of the other Transaction Parties such Person under any Insolvency Law, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(h) ; a decree or order is entered appointing any such a trustee, custodian, liquidator liquidator, receiver, monitor, receiver-manager, or receiver or adjudicating similar official for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) any Insolvency Law; there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower, any final judgment against the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,000;
(j) if 50,000,000.00; any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersa Guarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) ; any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents; with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 25,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower ; Borrower, any Guarantor or any of the other Transaction Parties shall be enjoinedtheir respective Subsidiaries or any shareholder, restrained officer, director, partner or in any way prevented by the order member of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties them shall be indicted for a state federal or federal foreign crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person or group of persons (within the meaning of Section 13 or 14 good faith judgment of the Securities Exchange Act of 1934Required Lenders could reasonably be expected to have a Material Adverse Effect, as amendedor (ii) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by assets included in the Securities and Exchange Commission under said Act) of thirty percent (30%) or more calculation of the outstanding shares of common stock Unencumbered Asset Value; any Guarantor denies that it has any liability or obligations under the Guaranty or any other Loan Document, or shall notify the Agent or any of the BorrowerLenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or cancel the Contribution Agreement or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document; or, during or an Event of Default under any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period other Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required U.S. Dollar Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the U.S. Dollar Revolving Credit Lenders will cause a U.S. Dollar Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch U.S. Dollar Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable first under the Letters of Credit and then to all other Revolving Credit Loans. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower will deposit in the Collateral Account and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable first under the Letters of Credit and then to other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations as provided above or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Loan and Collateral Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which of when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)8.2, 9 8.3, 8.4, 8.5, 8.13, 9, or 10;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the any Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in each case in excess of $5,000,000 in the aggregate5,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in each case in excess of $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Loan and Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 1,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Loan and Collateral Agent -------- determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would its Subsidiaries which could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;Borrower's ability to comply with its obligations hereunder.
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or;
(pi) any person Kawasaki Steel Corporation and Companhia Vale do Rio Doce shall directly 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 thirty percent (30%) or more indirectly together own less than 50% of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period or shall cease to constitute possess the right to appoint a majority of the board Board of directors Directors of the Borrower Borrower, or (ii) a "Change of Control" under and as defined in the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Permitted Refinancing Indebtedness shall have occurred; then, and in any such event, so long as the same may be continuing, either of the Agent Agents may, and upon the request of the Majority Super-majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided -------- that in the event of any Event of Default specified in ss.ss.13.1(g(SS)13.1(g), 13.1(h) or 13.1(h13.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the any Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (California Steel Industries Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two three (23) Business Days after the day on which the same shall become due and payable, whether at days of the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8Section 8.1 (including, 9 as it applies to Section 13.1(b), any grace period applicable thereto), Section 8.4, Section 8.5.1, Section 8.5.4, the first sentence of Section 8.6, Section 8.7, Section 8.12, Sections 9.1 through 9.6, Sections 9.8 through 9.13 or Section 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, Leases the outstanding principal amount of which obligations exceed exceeds $5,000,000 in the aggregate5,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Leases, the outstanding principal amount of which exceeds $5,000,000 in the aggregate5,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied unsatisfied, unstayed and unstayedunbonded, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, unsatisfied, unstayed and unbonded, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000100,000;
(j) there shall occur (i) an "Event of Default" under and as defined in the First Mortgage Note Indenture or (ii) an "event of default" or "Event of Default" under and as defined in any Loan Agreement, Note or Indenture described in Section 9.1(p);
(k) if the Borrower or any Subsidiary shall default in the performance of any term, covenant or agreement contained in the Security Documents (which default would not also constitute a default under subsections (a), (b) or (c) hereof) and the continuance of such default for thirty (30) days after written notice of such failure has been given to the Borrower by the Agent;
(l) if any material covenant, agreement or obligation of the Borrower or any Subsidiary contained in or evidenced by any ESOP Document or any Security Document shall cease to be legal, valid, binding, or enforceable in accordance with the terms thereof;
(m) if any ESOP Document shall be amended (except for technical or conforming amendments which are required to obtain Internal Revenue Service approval for the ESOP Documents and other amendments which do not, in either case, alter in any material respect the substance of the ESOP Documents) the effect of which shall result in the loss of the Borrower's tax deduction with respect to its contributions to the ESOP Trust or change the requirement that the ESOP must use all contributions to repay the ESOP Loan, or waived, canceled, terminated, revoked or rescinded otherwise than in accordance with the express prior written agreement, consent or approval of the Banks; 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 ESOP Documents or any one or more of the obligations of any Person or Persons under any one or more of the ESOP Documents are illegal, invalid, or unenforceable in accordance with the terms thereof (except that a determination by the Internal Revenue Service that the ESOP Documents are not qualified under the Code shall not constitute an Event of Default hereunder if such determination may be revised by technical or conforming changes to the ESOP Documents which do not alter in any material respect the substance of the ESOP Documents and the Borrower effects such amendments and obtains such reversal within thirty (30) days after the date of the original determination by the Internal Revenue Service);
(n) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded or the Agent's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(ko) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or in the event of a termination or withdrawal from a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000100,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000100,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN judgment that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 100,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court Court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(lp) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(mq) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Partiessuch Subsidiary, considered taken as a whole;
(nr) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(os) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted convicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000; or10,000,000;
(pt) 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 thirty percent (30%) 50% or more of the outstanding shares of common stock of the BorrowerCommon Stock; or, during any period of twelve twenty-four consecutive calendar months, individuals who were 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 or and any new director is not approved by a majority of the directors who were on the board of directors of the Borrower shall, at the beginning of such period; or
(u) the Availability shall at any time, legally or beneficially own time be less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)zero; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) Sections 13.1(g), 13.1(h), or 13.1(h13.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Republic Engineered Steels Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feefees, or other sums due hereunder or under any of the other Loan Documents, Documents within two five (25) Business Days after the day on which 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) the Borrower Borrowers shall fail to comply with any of its the covenants contained in ss.8§§6, 9 7 or 108;
(d) the Borrower or any of the other Transaction Parties Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§12.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties Borrowers in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money (other than the Obligations or credit received the Noteholders’ Debt) or any guaranty with respect thereto in respect of any Capitalized Leases, which obligations exceed an aggregate amount greater than $5,000,000 in the aggregate1,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding an aggregate amount greater than $5,000,000 in the aggregate, 1,000,000 for such period of time as would, or would permit have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the any Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the any Borrower or any of the other Transaction Parties or of any substantial part of the assets of the any Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the any Borrower or any of the other Transaction Parties 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 any Borrower or and any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or any of the other Transaction Parties 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 any Borrower or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the any Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the any Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,0001,000,000; the or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the any Borrower to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the any Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeany Borrower;
(on) the any Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction PartiesBorrower, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Borrowers having a fair market value in excess of $1,000,000; or;
(pi) except with respect to the applicable Designated LLC after a Permitted Transfer, the Parent shall at any time, legally or beneficially, directly or indirectly own less than one hundred percent (100%) of the Equity Interests of each other of the Borrower; or (ii) 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 thirty percent (30%) 20% or more of the outstanding shares of common stock Equity Interests of the Borrower; Parent or, during any period of twelve (12) consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower Parent; or (iii) a “change of control” as defined in the Borrower shallPermitted Subordinated Debt Offering documents shall occur; or
(p) (i) a default or event of default shall have occurred under the Noteholders’ Debt, at or (ii) the holders of all or any time, legally or beneficially own less than one hundred percent (100%) part of the shares Noteholders’ Debt shall accelerate the maturity of all or any part of the capital stock Noteholders’ Debt, or (iii) the Noteholders’ Debt shall be prepaid, redeemed or repurchased in whole or in part or amended except as permitted under §7.7 hereof without the prior consent of Hadco Santa Clarx (on a fully diluted basis)the Required Banks and the Administrative Agent; then, and in any such eventEvent of Default, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Required Banks shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h§12.1(p)(ii), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of any of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, or any Letter of Credit Fee, the Agent's fee, other fees or other sums due hereunder or under any of the other Loan Documents, within two ten (210) Business Days days after the day on which 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) the Borrower or the Trust shall fail to comply with any of its covenants covenant contained in ss.8§9, 9 and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent; provided, however, that in the event that Borrower or 10the Trust shall fail to comply with §9.5, then the same shall not constitute a Default hereunder in the event that Borrower prepays the Loans or provides additional Unencumbered Borrowing Base Property in accordance with the terms of this Agreement in an amount sufficient such that Borrower and the Trust would be fully in compliance with the covenant set forth in §9.5 within five (5) days of the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance, (ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of written notice of such noncompliance from Agent; and provided further, that during any period in which Borrower or the Trust shall fail to be in compliance of any covenant in §9.5, then the Banks shall have no obligation to make Loans;
(d) the Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) §12), and such failure shall continue for twenty thirty (2030) days after written notice of sucH failure has thereof shall have been given to the Borrower by the Agent; provided, however, that in the event that such failure shall be a failure to comply with the terms of §8.7(b), the Borrower shall be afforded a period of one (1) fiscal quarter to cure such failure provided that the Distribution which caused such failure was historically consistent with prior dividends; provided, further that no cure period shall be available with respect to a failure to comply with the terms of §7.5(a) or §8.4;
(e) any representation or warranty made by or on behalf of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of other Indebtedness (including, without limitation, any Capitalized Leases exceeding $5,000,000 in the aggregate, for Derivatives Contract)for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment or purchase thereof, provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(g) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,00010,000,000.00;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or Borrower, any Guarantor, any of the other Transaction Parties party thereto their respective Subsidiaries or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Trust or any of their respective Subsidiaries or any sale, transfer or other disposition of the assets of the Borrower, the Trust or any of their respective Subsidiaries other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower, any Guarantor or any of their respective Subsidiaries to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following occurs the filing or commencement thereof;
(n) the Borrower, any Guarantor, any of their respective Subsidiaries or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower, any Guarantor or any of their respective Subsidiaries, including the Real Estate;
(o) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; Plan or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lp) a Change of Control shall occur;
(q) Xxxxxx Xxxxxxxxxx shall cease to be active on a daily basis in the management of the Trust and the Borrower or and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) any Event of Default (as defined in any of the other Transaction Parties Loan Documents) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000occur; or
(ps) The Borrower and the Guarantor and any person of their respective Subsidiaries shall fail to pay at maturity, 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any applicable period of twelve consecutive calendar monthsgrace, individuals who were directors of the Borrower on the first day of any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period shall cease of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to constitute accelerate the maturity thereof or require a majority of the board of directors of the Borrower redemption, retirement, prepayment, purchase or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)defeasance thereof; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower (in addition to the rights afforded under §12.3) declare all amounts owing with respect to this Credit Agreement, the Notes Notes, and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 . In the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Banks or any Bankthe Agent.
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the any Borrower shall fail to pay any principal of the Revolving Credit Loans, Swing Line Loans or any Reimbursement Obligation when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans or the Swing Line Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) the any Borrower shall fail to comply with (i) any of its covenants contained in ss.8§§8.1, 8.2 (other than, with respect to CAI, moves within the State of California or with respect to CAL, moves within Barbados), 8.4(e), 8.5, 8.9, 8.12, 9 or 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement or (ii) any of its covenants contained in §8.4 (except for clause (e) thereof) and such failure shall continue unremedied for ten (10) days;
(d) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
§13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Administrative Agent;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any of the other Transaction Parties its Subsidiaries shall (x) fail to pay at maturity, or within any applicable period of grace, (i) any obligations obligation for borrowed money or credit received or in an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized LeasesLeases in an aggregate amount in excess of $20,000,000, (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations exceed of the Borrowers and their Subsidiaries thereunder exceeds $5,000,000 in the aggregate20,000,000, or (iv) any obligation under any documentation of Indebtedness incurred in connection with a Permitted Securitization in an aggregate amount in excess of $20,000,000 (including any “termination event”, “event of termination” or any default or event of default thereunder), or (y) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound referenced in clauses (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, i) through (iv) above for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or require the prepayment, repurchase, redemption or defeasance thereof or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gi) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the such Borrower , such Guarantor or any of the other Transaction Parties such Material Subsidiary or of any substantial part of the assets of the Borrower such Borrower, such Guarantor or any of the other Transaction Parties such Material Subsidiary or shall commence any case or other proceeding relating to the Borrower such Borrower, such Guarantor or any of the other Transaction Parties such Material Subsidiary 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 (ii) if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties and the Borrower Material Subsidiary and, with respect to this clause (ii) only, (x) such Borrowers, such Guarantor or any of the other Transaction Parties such Material Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or (y) such petition or application shall not have been dismissed within forty-five thirty (4530) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary 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 any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the any Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
(j) [reserved];
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative Agent's 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the any Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(ki) the Borrower or any An ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following Event occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, Plan or a failure to make a required installment Multiemployer Plan which has resulted or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the PBGC Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan5,000,000;
(lm) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the any Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(op) the any Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the any Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the such Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or the Domestic Borrowing Base or any assets of any Borrower or such Subsidiary not included in the Borrowing Base or the Domestic Borrowing Base but having a fair market value in excess of $1,000,0005,000,000; or
(pq) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent shall, at the request of, or may, and upon with the request of consent of, the Majority Banks shallRequired Lenders, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations and Swing Line Loans to be, and they shall thereupon forthwith become, immediately due and payable and the require the Borrowers to provide Cash Collateral for all L/C Exposure, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§§13.1(g) or 13.1(h), all such amounts shall become immediately due and payable and the Borrowers shall be required to provide Cash Collateral for all L/C Exposure, in each case, automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to perform any term, covenant or agreement contained in §9, and with respect to a failure to comply with any of its covenants contained in ss.8§9.1, 9 or 10§9.2 and §9.4 only, such failure shall continue for five (5) Business Days after such occurrence;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument prepared by or on behalf of the Borrower or a Guarantor and delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involves singly or in the aggregate (i) any obligations for Indebtedness or under Derivative Contracts (other than Non-Recourse Indebtedness) or (ii) Non‑Recourse Indebtedness totaling $25,000,000.00 or greater;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five ninety (4590) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (3045) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, rescinded by the Borrower or any Guarantor other than in each case otherwise than accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or content the validity or enforceability of any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a Guaranteed any Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Pension Plan in an aggregate amount exceeding $2,000,000 10,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure forfeiture to renewthe United States of America of (i) any assets of the Borrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries which in the other Transaction Parties if such loss, suspension, revocation or failure good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on the business Material Adverse Effect, or financial condition of the Borrower and the other Transaction Parties, considered as a whole(ii) any Collateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against the Borrower agreement under any Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person Change of Control shall occur;
(q) any default, material misrepresentation or group breach of persons warranty by the Borrower as the subordinate lender under any Subordination Agreement; or
(within the meaning r) an Event of Section 13 or 14 Default under any of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallRequired Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the Agent or the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two three (23) Business Days after days of the day on which date when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8secs.7 (other than secs.7.5.2, 7.7, 7.11 or 7.13), 8 or 9 hereof, or 10any of the covenants contained in the Guaranty;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1ss.12) for twenty (20) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in excess of $5,000,000 in the aggregate5,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in excess of $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final final, nonappealable judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final final, nonappealable judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0003,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability upon the termination of a Guaranteed Pension Plan to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 1,000,000 (provided that nothing in this clause shall preclude the Borrower or any ERISA Affiliate from making contributions in contemplation of any standard termination), the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN discretion that such event (A) could be expected is likely to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 1,000,000, and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court Court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) dayshave a Material Adverse Effect;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any registration, license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(pn) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other than Lee xx the Employee Group shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty twenty percent (3020%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of ;
(o) the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, time legally or beneficially own less than one hundred percent (100%) of the shares % of the capital stock of Hadco Santa Clarx any Guarantor; or
(on a fully diluted basis); then, and in p) any such event, so long as Guarantor denies that it has any liability or obligations under the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to bewhich it is a party, and they or shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from notify the Agent or any Bank.Bank of the Guarantor's intention to attempt to cancel or terminate the Guaranty to which it is a party or shall fail to observe any term, covenant, condition or agreement under any Loan Document to which it is a party; 63 -57-
Appears in 1 contract
Samples: Revolving Credit Agreement (Freedom Securities Corp /De/)
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, Fee or the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment or shall fail to pay any other sums due hereunder or under any of the other Loan Documents within five (5) days of when the same shall become due and payable;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)11 (other than the covenants contained in (S)11.2, 9 (S)11.4, the second sentence of (S)11.6, (S)11.8 and (S)11.11), (S)12 (other than (i) the covenant contained in (S)12.2, but only to the extent of any lien or 10other encumbrance which has not been granted by the Borrower or any of its Subsidiaries and which the Borrower and such Subsidiary is proceeding in good faith to have released or otherwise discharged; and (ii) the covenant contained in (S)12.7, but only to the extent the Borrower or its Subsidiary has taken all action necessary to remediate the violation and such remediation is possible) or (S)13 or any of the covenants contained in any of the Mortgages;
(d) the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained in (S)11.4 for ten (10) Business Days after written notice of such failure has been given to the other Transaction Parties Borrower by the Agent or the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)16.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) a Change of Control shall occur;
(g) a default or an event of default shall occur with respect to the New Notes;
(h) a default or an event of default shall occur with respect to the Old Notes;
(i) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed if the aggregate principal amount of such Indebtedness is in excess of $5,000,000 in the aggregate250,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, each case in such amount for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gj) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(hk) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(il) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of its Subsidiaries exceeds insurance coverage applicable thereto for which the other Transaction Parties exceeds relevant insurance carrier has accepted liability by $250,000 or more, in the aggregate $5,000,000aggregate;
(jm) the holders of all or any part of the New Notes shall accelerate the maturity of all or any part of the New Notes or the New Notes shall be prepaid, redeemed or repurchased in whole or in part or the holders shall have the right to require such New Notes to be prepaid, redeemed or repurchased in whole or in part;
(n) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded or the Agent's security interests, mortgages or liens in any material Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksBanks (other than due to the negligence of the Agent in failing to make any filings required to be made by the Agent), 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(ko) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lp) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) daysdays and could reasonably be expected to have a material adverse effect on the business, assets or financial condition of the Borrower and its Subsidiaries, considered as a whole;
(mq) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen thirty (1530) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Partiesits Subsidiaries, considered as a whole;
(nr) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Partiesits Subsidiaries, considered as a whole;; or
(os) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.250,000;
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) any of the Borrower Borrower, any Guarantor, or any of their respective Subsidiaries shall fail to comply with perform any of its covenants other term, covenant or agreement contained in ss.8§9.1, 9 §9.2, §9.3 or 10§9.4 or §§10(b)-(e) of the Guaranty applicable to such Person;
(d) any of the Borrower Borrower, any Guarantor, or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §11 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, any Guarantor, or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay when due (including without limitation at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption or purchase thereof; provided, however, that the events described in this §11.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §11.1(f), involve singly or in the aggregate obligations for Indebtedness totaling in excess of $10,000,000.00;
(g) any of the Borrower Borrower, any Guarantor, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, any Guarantor, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, any Guarantor, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower, any final judgment against the Borrower Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of Parent, the Borrower or any ERISA Affiliate incurs of their respective Subsidiaries shall occur or any liability to sale, transfer or other disposition of the PBGC or a Guaranteed Pension Plan pursuant to Title IV assets of ERISA in an aggregate amount exceeding $2,000,000; any of Parent, the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or any of the following occurs other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, any Guarantor or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 15,000,000.00 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renewBorrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the other Transaction Parties if such lossforfeiture of (i) any assets of Borrower, suspension, revocation any Guarantor or failure any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on Material Adverse Effect or (ii) the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state Loan Document (or federal crimeits obligations thereunder), or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought agreement under the Guaranty or threatened against any other Loan Document;
(p) (i) an “event of default” under and as defined in any Contract has occurred that continues beyond any applicable cure or grace period provided for thereunder and (x) the Borrower has received notice that the applicable Owner has terminated, or any has taken action to terminate, such Contract(s) and (y) the other Transaction Partiesaggregate amount of the unpaid or remaining contract sum or contract price under all such Contracts which the applicable Owner has terminated, a punishment for or has taken action to terminate, is greater than ten percent (10%) of the aggregate unpaid or remaining contract sum or contract price with respect to all Contracts as reflected on the WIP Schedule most recently delivered to Agent pursuant to §7.4(e) or (ii) one or more claims, disputes, defaults or events of default occur under one or more Contracts, which claims, disputes, defaults or events of default result in payment to, judgment in favor of, or deduction in any such case could include amount owed by the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value applicable Owner in an amount in excess of $1,000,000; or5,000,000.00 individually or in the aggregate;
(pq) any person or group Change of persons Control shall occur;
(within the meaning r) an Event of Section 13 or 14 Default under any of the Securities Exchange Act other Loan Documents shall occur;
(s) an “event of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities Default” under and Exchange Commission under said Act) of thirty percent (30%) or more defined in any of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period Senior Revolving Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§11.1(g), §11.1(h) or 13.1(h§11.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Lenders or any Bankthe Agent.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Cogdell Spencer Inc.)
Events of Default and Acceleration. If any of the following events ("Events of DefaultEVENTS 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, "DefaultsDEFAULTS") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation Loan when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the LoansLoan, the commitment fee, any Letter of Credit Closing Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 Sections 6 or 107;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 10.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the AgentLender;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Loan Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Loan Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 any Insolvency Event shall occur, 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five fourteen (4514) days following the filing thereof;
(h) the Borrower or any of its Subsidiaries organized in Germany shall become obligated to file for bankruptcy proceedings pursuant to Section 64 of the GmbH Act;
(i) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty fourteen (3014) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000200,000;
(jk) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Lender's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLender, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 50,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,00050,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided PROVIDED that the Agent Lender determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 50,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty fourteen (3014) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, causes the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have in the opinion of the Lender a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have in the opinion of the Lender a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;or such Subsidiary; and
(op) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state fail to observe or federal crimeperform, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of material respect, any assets covenant, agreement or obligation contained in any of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 Merger Documents or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Bridgestone Acquisition Documents; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, Lender may by notice in writing to the Borrower declare all amounts owing with respect to this Credit Loan Agreement, the Notes Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(hSection 10.1(g), 10.1(h), 10.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Guarantor shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, Documents within two five (25) Business Days days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Sections 8.4.1, 8.10, 8.11, 9 or 10;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed in an amount in excess of $5,000,000 in the aggregate50,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Leases, in an amount in excess of $5,000,000 in the aggregate50,000,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Material Worldwide Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Material Worldwide Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Material Worldwide Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties its Material Worldwide 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 the other Transaction Parties its Material Worldwide Subsidiaries and the Borrower or any of the other Transaction Parties its Material Worldwide Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties its Material Worldwide Subsidiaries 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 or any Material Worldwide Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty five (3045) days, whether or not consecutive, any final and unappealable judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries which are not otherwise covered by insurance exceeds in the aggregate $5,000,00050,000,000;
(j) if any an ERISA Event shall have occurred that, in the opinion of the Loan Documents shall be cancelledRequired Lenders, terminatedwhen taken together with all other ERISA Events that have occurred, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could reasonably be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000Material Adverse Effect; or
(pk) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Lexmark International Inc /Ky/)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8§§6(a), 9 (b), (d)(i), (e), (f), (i), (j), (k), 7 or 108;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§11.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the AgentLender;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate500,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount in excess of $5,000,000 in the aggregate, 500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) 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 or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgmentsjudgments not covered by insurance, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLender, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of under ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) which could reasonably be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of have a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such PlanMaterial Adverse Effect;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur , or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business Material Adverse Effect or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000Material Adverse Effect; or
(pm) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent Lender may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§11.1(g) or 13.1(h11.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent Lender. In addition, upon the occurrence and continuation of an Event of Default hereunder, the Lender is permitted to terminate the XXX Letter of Credit pursuant to the terms thereof by delivering a notice to the beneficiary of the XXX Letter of Credit that such Letter of Credit is being terminated by the Lender, all as more fully set forth in such XXX Letter of Credit, provided, other than in the event of any Event of Default specified in §§11.1(g) or any Bank11.1(h), the Lender shall provide the Borrower with ten (10) days advance notice prior to terminating such XXX Letter of Credit (provided, however, for the avoidance of doubt, the parties hereto hereby acknowledge and agree that the Lender shall have the immediate right to take the action set forth in the immediately preceding sentence and the ten day advance notice to the Borrower of terminating the XXX Letter of Credit only applies to the such termination, and not the Lender’s rights to accelerate the Obligations, demand cash collateral or take other actions against the Borrower the Lender is so entitled to take hereunder).
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation Obligations when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feefee payable hereunder, or other sums due hereunder or hereunder, under any of the other Loan DocumentsDocuments or under the Fee Letter, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Sections 9, 9 10 or 1011 hereof or any of the covenants contained in any of the Mortgages after expiration of any applicable grace period provided for in the Mortgages;
(d) the Borrower or any of the its Subsidiaries, other Transaction Parties than Excluded Subsidiaries, shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 15) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed any Interest Rate Protection Agreement or other similar derivative contract of the type described in clause (d) of the definition of Indebtedness, in each case in any amount greater than $5,000,000 in the aggregate250,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Leases, in each case in any amount greater than $5,000,000 in the aggregate, 250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo or of any substantial part of the assets of the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo or shall commence any case or other proceeding relating to the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo 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 Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo and the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo shall indicate its approval thereof, consent thereto or acquiescence therein therein, or if any involuntary proceeding shall be commenced or an involuntary petition shall be filed against the Borrower, any of its Subsidiaries or HoldCo and such proceeding or petition or application shall not have been dismissed within forty-five continue undismissed for thirty (4530) days following the filing thereofdays;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo 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 or Borrower, any of the other Transaction Parties its Subsidiaries or HoldCo in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) that, with other outstanding final judgments, undischarged, against the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) exceeds in the aggregate $5,000,000250,000;
(j) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded or the Administrative Agent's security interests, mortgages or liens on or 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent and the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility Station of the Borrower or any of the its Subsidiaries (other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholethan Excluded Subsidiaries);
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit (including any FCC License) now held or hereafter acquired by the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(o) the Borrower or any of the its Subsidiaries (other Transaction Parties than Excluded Subsidiaries) shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such any of its Subsidiaries (other Transaction Party than Excluded Subsidiaries) having a fair market value in excess of $1,000,000; or250,000;
(p) at any person time prior to the incorporation of HoldCo, Xxxxxxx Xxxxxxx shall (i) legally or group of persons (within the meaning of Section 13 or 14 beneficially own less than 316,950 shares 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during as adjusted pursuant to any period of twelve consecutive calendar monthsstock split, individuals who were directors reverse stock split, stock dividend or recapitalization or reclassification of the Borrower on capital of the first day of such period shall Borrower, (ii) cease to constitute own common stock having the right at all times to elect a majority of the board Board of directors Directors of the Borrower or a majority of the Board of Directors of the Borrower shall, shall cease at any timetime to be comprised of Persons nominated or otherwise approved by Xxxxxxx Xxxxxxx, or (iii) cease to control the outcome of any vote of the shareholders of the Borrower (except as prohibited by Indiana corporate law to the extent such law requires specific class majorities or unanimity and except with respect to any vote of shareholders to take the Borrower private);
(q) at any time after the incorporation of HoldCo (i) HoldCo shall legally or beneficially own less than one hundred percent (100%) of the capital stock of the Borrower, or (ii) Xxxxxxx Xxxxxxx shall (A) legally or beneficially own less than 316,950 shares of the common stock of HoldCo, as adjusted pursuant to any stock split, reverse stock split, stock dividend or recapitalization or reclassification of the capital of HoldCo, (B) cease to own common stock having the right at all times to elect a majority of the Board of Directors of HoldCo or a majority of the Board of Directors of HoldCo shall cease at any time to be comprised of Persons nominated or otherwise approved by Xxxxxxx Xxxxxxx, or (C) cease to control the outcome of any vote of the shareholders of HoldCo (except as prohibited by applicable corporate law to the extent such law requires specific class majorities or unanimity and except with respect to any vote of shareholders to take HoldCo private);
(r) the on-the-air broadcasting operations of any Stations owned by the Borrower or any of its Subsidiaries accounting for, in the aggregate, ten percent (10%) or more of the consolidated net operating revenues of the Borrower and its Subsidiaries (i) are interrupted at any time for more than 120 hours during any period of twenty (20) consecutive days and (ii) by the sixtieth day following such period, the Borrower shall not have received the proceeds of business interruption insurance sufficient to cover the aggregate lost operating revenues resulting from such interruption;
(s) the commencement of proceedings to suspend, revoke, terminate or substantially and adversely modify any material FCC License of the Borrower, any of its Subsidiaries or of any Stations thereof if such proceeding shall continue uncontested for forty-five (45) days or the Banks shall reasonably believe that the result thereof shall be the termination, revocation, or suspension of such FCC License; or the designation of an application for renewal of any such material FCC License for an evidentiary hearing if the Banks shall reasonably believe that the result thereof shall be the termination, revocation or suspension of such FCC License;
(t) any default or event of default shall occur under any of the Wabash Valley Broadcasting Acquisition Documents or any other documents entered into in connection with any other Permitted Acquisition, which such default or event of default is likely to have a material adverse effect on the business or financial condition of the Borrower or any of its Subsidiaries;
(u) HoldCo shall, at any time, (i) engage in any business activity other than (A) to hold beneficially all of the issued and outstanding capital stock of Hadco Santa Clarx the Borrower and (B) to incur Indebtedness permitted by (and incurred in accordance with the provisions of) Section 10.1(k) hereof; or (ii) lease or own any real property or employ any employees, agents (other than a registered agent in its state of incorporation) or representatives for any reason whatsoever; and
(v) the holders of any part of the Indebtedness described in Section 10.1(k) hereof or the holders of the SF Broadcasting Seller Note shall accelerate the maturity of all or any part of such Indebtedness or such Indebtedness shall be prepaid, redeemed or repurchased in whole or in part or any default shall occur with respect thereto or in the case of the SF Broadcasting Seller Note any portion of the principal and interest obligations owing thereunder and/or any obligations under Section 2.5(e) of the SF Asset Purchase Agreement as in effect on a fully diluted basis)the Closing Date shall be paid in any manner other than by the issuance and delivery to the holder of the SF Broadcasting Seller Note, or its nominee, of Class A Common Stock of the Borrower or with cash proceeds from an issuance of such Class A Common Stock which occurred after the Closing Date and prior to the date of such payment; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 15.1(g), 15.1(h) or 13.1(h15.1(v), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. In addition, the Administrative Agent may direct the Borrower by notice in writing to pay (and the Borrower hereby agrees upon receipt of such notice to pay) to the Administrative Agent such additional amounts of cash, to be held as security for all Reimbursement Obligations, equal to the Maximum Drawing Amount of Letters of Credit then outstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment feeCommitment Fee, any Letter of Credit Fee, the Agent's fee, Fee or other sums due hereunder or under any of the other Loan DocumentsDocuments owing by the Borrowers, within two three (23) Business Days after the day on which days of when 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;
(ci) the Borrower Borrowers or the Parent shall fail to comply with any of its the covenants contained in ss.8SECTION 8.4, SECTION 8.5, the first sentence of SECTION 8.6, SECTION 9 or 10SECTION 10 hereof;
(d) the Borrower Borrowers or the Parent or any of the other Transaction Parties Guarantor shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
SECTION 13.1) for twenty thirty (2030) days after written notice of sucH such failure has been given to the Borrower Parent by the Administrative Agent;
(e) any representation or warranty of the Parent, either Borrower or any of the other Transaction Parties Guarantor in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Parent, the Borrowers, any Guarantor or any of the Parent's other Transaction Parties Subsidiaries (other than Subsidiaries which are not Restricted Subsidiaries) shall fail to pay at maturitywhen due, or within any applicable period of grace, any obligations for borrowed money amounts under Indebtedness of $1,000,000 or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money Indebtedness in excess of $1,000,000 or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower Parent, the Borrowers or any of the other Transaction Parties Parent's Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Person or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties such Person 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 the other Transaction Parties such Person and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Parent, the Borrowers or any of the other Transaction Parties Parent's Subsidiaries 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower Parent, the Borrowers or any of the Parent's other Transaction Parties Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Persons exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower Parent, the Borrowers or any of the other Transaction Parties Parent's 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to Parent, the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Borrowers or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties Parent's Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) daysbusiness;
(ml) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower Parent, the Borrowers or any of the other Transaction Parties Parent's Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;Material Adverse Effect.
(nm) there shall occur the lossParent, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower Borrowers or any of the Parent's other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or any such other Transaction Party Person having a fair market value in excess of $1,000,000; or500,000;
(pn) any person or group of persons (within the meaning of Section 13 or 14 of Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, but excluding persons who are employees of the Parent or a Subsidiary of the Parent) shall have acquired acquire after the date hereof beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) 25% or more of the outstanding shares of common stock of the BorrowerParent; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or Parent;
(o) if the Borrower shall, Parent shall at any time, legally or beneficially own less than one hundred percent (100%) % of the shares of the capital voting common stock of Hadco Santa Clarx (on a fully diluted basis)each of the Borrowers; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower Borrowers declare an amount equal to the maximum aggregate amount that is or may thereafter become available for drawing under any outstanding Letters of Credit to be immediately due and payable, and declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, become immediately due and payable in each case without presentment, demand, protest protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(gSECTION 13.1(G), 13.1(H) or 13.1(h13.1(j), all such amounts shall become immediately due and payable automatically and without any requirement further act of notice from the Administrative Agent or any BankBank and without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or any other notice of any kind, all of which are hereby expressly waived by the Parent and the Borrowers.
Appears in 1 contract
Samples: Revolving Credit Agreement (Trico Marine Services Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, Documents (other than principal) within two five (25) Business Days days after the day on which 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) the Borrower or the Company shall fail to comply with any of its covenants contained in ss.8Section 7.5, Section 7.7, Section 7.13, Section 7.20, Section 8 or Section 9 hereof or 10the first or second sentences of Section 7.6;
(d) the Borrower or any of the other Transaction Parties Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 12) for twenty thirty (2030) days after written notice of sucH such failure has been given from Agent to the Borrower by the AgentBorrower;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or Agreement, any of the other Loan Documents or in any other document or instrument delivered pursuant to or in -51- connection with this Credit Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) (i) any "Event of Default", as such term is defined in the Borrower Existing Credit Facility, shall have occurred and be continuing under the Existing Credit Facility, whether or not the maturity of any obligations issued thereunder have been accelerated; or (ii) the Borrower, the Company, any Guarantor, any of the other Transaction Parties Related Companies or any Unconsolidated Entity shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in Recourse Indebtedness (other than the aggregateExisting Credit Facility), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in Recourse Indebtedness (other than the aggregate, Existing Credit Facility) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness is less than $5,000,000.00;
(g) the Borrower or Borrower, the Company, any Guarantor, any of the Related Companies or any Unconsolidated Entity shall fail to pay at maturity, or within any applicable period of grace, any Indebtedness other Transaction Parties than Recourse Indebtedness, 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 Indebtedness other than Recourse Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Indebtedness other than Recourse Indebtedness plus the amount of any unsatisfied judgments is less than $15,000,000.00;
(i) any of the Borrower, the Company or any Guarantor shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its properties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties such Person and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein therein, or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such petition or application event shall not have been dismissed within forty-five (45) days following the filing thereofa Material Adverse Effect;
(hi) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower Borrower, the Company, or any of the other Transaction Parties 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 Borrower, the Company, or any of the other Transaction Parties Guarantor in an involuntary case under federal bankruptcy laws as now or hereafter constitutedconstituted or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding uninsured final judgments, undischarged, against the Borrower Borrower, the Company or any of the other Transaction Parties Related Companies, exceeds in the aggregate $5,000,0005,000,000.00;
(jk) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) one or more ERISA Events occurs which individually or in the Borrower aggregate results in or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could might reasonably be expected to result in liability of the Borrower to or any of its ERISA Affiliates in excess of $5,000,000 at any one time during the PBGC term of this Agreement; or if, at any one time, there exists an amount of unfunded pension liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the Plan in an aggregate amount exceeding $2,000,000 and for all Guaranteed Pension Plans (B) could constitute grounds excluding for the termination purposes of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the computation any Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee Plans with respect to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Planwhich assets exceed benefit liabilities), which exceeds $5,000,000;
(lm) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties Guarantor shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower;
(n) the Borrower shall fail to pay, observe or perform any term, covenant, condition or agreement contained in any agreement, document or instrument evidencing, securing or otherwise relating to any Indebtedness of the Borrower to any Lender (other than the Obligations) within any applicable period of grace provided for in such other Transaction Party having a fair market value in excess of $1,000,000; oragreement, document or instrument;
(o) any Material Adverse Effect shall occur;
(p) any person or group "Event of persons (within the meaning of Section 13 or 14 Default", as defined in any of the Securities Exchange Act other Loan Documents shall occur; or
(q) any Collateral Document shall for any reason cease to create a valid Lien on any of 1934the Collateral purported to be covered thereby or, except as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated permitted by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; orLoan Documents, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period Lien shall cease to constitute be a majority of the board of directors of perfected and first priority Lien or the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Guarantor shall so state in writing; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Requisite Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bankaction by the Requisite Lenders.
Appears in 1 contract
Samples: Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's facility fee or utilization fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)6, 9 7 or 108;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)11) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received (including, without limitation, under or in respect of the Second Amended and Restated Revolving Credit Agreement) or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of capital stock of the Borrower or other Margin Stock for so long as such stock constitutes Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents loan documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court Court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any assets of the Borrower or its Subsidiaries, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as its Subsidiaries on a wholeconsolidated basis;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as its Subsidiaries on a wholeconsolidated basis;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party and its Subsidiaries having a an aggregate fair market value in excess of $1,000,0005,000,000; or
(p) (i) 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 thirty twenty percent (3020%) or more of the outstanding shares of common stock of the Borrower; or, or (ii) during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.twelve
Appears in 1 contract
Samples: Revolving Credit Agreement (New England Business Service Inc)
Events of Default and Acceleration. If Time is of the essence of this Note. The occurrence of any of the following events ("Events shall constitute an “Event 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"” hereunder: (i) shall occur:
(a) the Borrower shall fail Borrower’s failure to pay timely any principal of the Loans or any Reimbursement Obligation when the same shall become amount due hereunder, and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed such failure continues for payment;
ten (b10) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two business days; (2ii) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution insolvency or liquidation proceedings or similar other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against Borrower and, if instituted against Borrower, Borrower shall by any jurisdictionaction or answer approve of, now consent to or hereafter acquiesce in effectany such proceedings or admit the material allegations of, or default in answering a petition filed in any such proceeding or such proceedings shall take not be dismissed within ninety (90) calendar days thereafter; (iii) any action to authorize or in furtherance material breach by Xxxxxxxx, that remains uncured for greater than 5 days after receipt of written notice of same, of any of the foregoing, or if any such petition or application shall be filed or any such case or terms of this Note (other proceeding shall be commenced against the Borrower or any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISAobligations), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (iiiv) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock dissolution of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors or (v) cessation or liquidation of the Borrower on the first day of such period shall cease to constitute a majority Borrower’s business or suspension of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less Borrower’s business for more than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in forty-five consecutive days. If any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) occurs, Holder may, then or 13.1(h)at any time thereafter, all such amounts shall and at its option, accelerate maturity and cause the entire unpaid principal balance of this Note, together with interest accrued hereon, to become immediately due and payable automatically and without any requirement payable. If Holder waives Holder’s right to accelerate maturity as a result of notice from an Event of Default hereunder, either one or more times or repeatedly, nevertheless Holder shall not be deemed to have waived the Agent or any Bankright to require strict compliance with the terms of this Note thereafter.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with any of its covenants the covenant contained in ss.8, 9 or 10§9.1 and such failure shall continue for fifteen (15) calendar days after written notice thereof shall have been given to the Borrower by the Agent;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any other term, covenant or agreement contained in §9;
(e) the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(ef) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofthereof or require the termination or other settlement of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve (i) Recourse Indebtedness in excess of $10,000,000, or (ii) Non-Recourse Indebtedness in excess of $50,000,000;
(gh) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, any Guarantor or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty fifteen (3015) daysdays during any calendar year, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against (x) the Borrower or any Guarantor that, either individually or in the aggregate, exceed $10,000,000.00 in any calendar year or (y) any Subsidiary of the other Transaction Parties Borrower that is not a Subsidiary Guarantor that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00010,000,000.00 in any calendar year;
(jl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(km) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lo) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be enjoinedindicted for a federal crime, restrained or in a punishment for which could include the forfeiture of (i) 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility assets of the Borrower or any of their respective Subsidiaries which in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would good faith judgment of the Majority Lenders could reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation ofMaterial Adverse Effect, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or (ii) any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeUnencumbered Pool Properties;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) any person Guarantor denies that it has any liability or group of persons (within obligation under the meaning of Section 13 Guaranty or 14 any other Loan Document, or shall notify the Agent or any of the Securities Exchange Act Lenders of 1934such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(q) [reserved];
(r) [reserved];
(s) [reserved];
(t) [reserved];
(u) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as amendeda result of such failure if such failure relates solely to a parcel or parcels of Real Estate that are not an Unencumbered Pool Property whose book value, either individually or in the aggregate, does not exceed $10,000,000.00;
(v) REIT shall have acquired beneficial ownership fail to comply at any time with all requirements and applicable laws and regulations necessary to maintain REIT Status and shall continue to receive REIT Status;
(within the meaning w) REIT shall fail to comply with any SEC reporting requirements;
(x) any Change of Rule 13d-3 promulgated by the Securities and Exchange Commission Control shall occur; or
(y) an Event of Default under said Act) of thirty percent (30%) or more any of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period other Loan Documents shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallLenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(h), §12.1(i) or 13.1(h§12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Lenders or the Agent, Borrower hereby expressly waiving any Bankright to notice of intent to accelerate and notice of acceleration.
Appears in 1 contract
Samples: Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants covenant contained in ss.8, 9 Section 7.14 or 10Section 7.15;
(d) the Borrower shall fail to comply with any covenant contained in Section 9, and such failure shall continue for 30 days after written notice thereof shall have been given to the Borrower by the Agent;
(e) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere above in this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the AgentSection 12);
(ef) any representation or warranty of the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor in this Credit Agreement or any of the other Loan Documents Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall fail to pay when due or at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;maturity
(gh) the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or thereof, (ii) shall commence any case or other proceeding relating to the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any such of its Subsidiaries or the Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five (45) 60 days following the filing or commencement thereof;
(hj) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Subsidiaries or the other Transaction Parties 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 or any of its Subsidiaries or the other Transaction Parties Guarantor, in each case of the foregoing in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ik) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) 60 days, whether or not consecutive, any uninsured final judgment against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of its Subsidiaries or the other Transaction Parties Guarantor exceeds in the aggregate $5,000,0005,000,000.00;
(jl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or the Guarantor or any of its holders of Voting
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or the Guarantor, or any sale, transfer or other disposition of the assets of the Borrower or the Guarantor, other than as permitted under the terms of this Agreement or the other Transaction Parties party thereto Loan Documents;
(n) any suit or proceeding shall be filed against the Borrower or the Guarantor or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency assets which in the good faith business judgment of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling the Majority Banks after giving consideration to the effect that, likelihood of success of such suit or proceeding and the availability of insurance to cover any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs judgment with respect thereto and based on the information available to them, if adversely determined, would have a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within materially adverse affect on the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility ability of the Borrower or any the Guarantor to perform each and every one of their respective obligations under and by virtue of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeLoan Documents;
(o) the Borrower or any of the other Transaction Parties Guarantor shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000the Guarantor; or
(p) the Guarantor denies that the Guarantor has any person liability or group of persons (within obligation under the meaning of Section 13 Guaranty, or 14 shall notify the Agent or any of the Securities Exchange Act Banks of 1934the Guarantor's intention to attempt to cancel or terminate the Guaranty, as amendedor shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty; or
(q) Goxxxx Xxxxxx xhall cease to be the Chairman/ Board of Trustees of, or Mixxxxx X. Xxxxxx xhall cease to be the Chief Executive Officer of, Storage Trust Guarantor, and a competent and experienced successor for such Person shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated not be approved by the Securities Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld or delayed; or
(r) Goxxxx Xxxxxx, Mixxxxx X. Xxxxxx xnd Stxxxxx X. Xxxxx xhall no longer own directly or beneficially, on a combined basis, at least two hundred thousand (200,000) issued and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period Storage Trust Guarantor or partnership units of twelve consecutive calendar months, individuals who were directors Borrower convertible into an equivalent number of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Storage Trust Guarantor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.or
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Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loans or any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) the Borrower shall fail to comply with perform any of its covenants term, covenant or agreement contained in ss.8, 9 or 10§9;
(d) any of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subsections or clauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateDerivatives Contract), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any obligation for borrowed money or credit received or in respect of other Indebtedness (including under any Capitalized Leases exceeding $5,000,000 in the aggregate, Derivatives Contract) for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption, purchase, termination or other settlement thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involves singly or in the aggregate obligations totaling $5,000,000.00 of Indebtedness or more;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayedunstayed (including as a result of an appeal), for more than thirty (30) days, any whether or not consecutive, one (1) or more uninsured or unbonded final judgment judgments against the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,0005,000,000.00 per occurrence or during any twelve (12) month period;
(jk) if any of the Loan Documents shall be cancelleddisavowed, canceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to disavow, cancel, revoke revoke, rescind or rescind challenge or contest the validity or enforceability of any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantor, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or Borrower, any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, Guarantor or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the following occurs assets of the Borrower, any Guarantor or any of their respective Subsidiaries shall occur, in each case, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding excess of $2,000,000 5,000,000.00 and (Bx) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renewBorrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower their respective Subsidiaries or any shareholder, officer, director, partner or member of the other Transaction Parties any of them shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to have a Material Adverse Effect;
(o) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(p) any person or group Change of persons Control shall occur;
(within the meaning q) an Event of Section 13 or 14 Default under any of the Securities Exchange Act other Loan Documents shall occur; or
(r) any Event of 1934, Default (as amendeddefined in the Existing Credit Agreement) 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and and, upon the request of the Majority Banks shallRequired Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Agent Lenders or the Agent, the Borrower hereby expressly waiving any Bank.right to notice of intent to accelerate and notice of acceleration
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Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feefees, or other sums due hereunder or under any of the other Loan Documents, Documents within two five (25) Business Days after the day on which 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) the Borrower Borrowers shall fail to comply with any of its the covenants contained in ss.8§§6, 9 7 or 108;
(d) the Borrower or any of the other Transaction Parties Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1§12.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties Borrowers in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money (other than the Obligations or credit received the Noteholders’ Debt) or any guaranty with respect thereto in respect of any Capitalized Leases, which obligations exceed an aggregate amount greater than $5,000,000 in the aggregate1,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding an aggregate amount greater than $5,000,000 in the aggregate, 1,000,000 for such period of time as would, or would permit have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the any Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the any Borrower or any of the other Transaction Parties or of any substantial part of the assets of the any Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the any Borrower or any of the other Transaction Parties 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 any Borrower or and any of the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or any of the other Transaction Parties 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 any Borrower or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the any Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the any Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,0001,000,000; the or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(l) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the any Borrower to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the any Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeany Borrower;
(on) the any Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction PartiesBorrower, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Borrowers having a fair market value in excess of $1,000,000; or;
(pi) except with respect to the applicable Designated LLC after a Permitted Transfer, the Parent shall at any time, legally or beneficially, directly or indirectly own less than one hundred percent (100%) of the shares of the common stock, partnership interests or membership units of each other of the Borrower; or (ii) 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 thirty percent (30%) 20% or more of the outstanding shares of common stock of the Borrower; Parent or, during any period of twelve (12) consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower Parent; or
(p) (i) a default or event of default shall have occurred under the Borrower shallNoteholders’ Debt, at or (ii) the holders of all or any time, legally or beneficially own less than one hundred percent (100%) part of the shares Noteholders’ Debt shall accelerate the maturity of all or any part of the capital stock Noteholders’ Debt, or (iii) the Noteholders’ Debt shall be prepaid, redeemed or repurchased in whole or in part or amended except as permitted under §7.7 hereof without the prior consent of Hadco Santa Clarx (on a fully diluted basis)the Majority Banks and the Administrative Agent; then, and in any such eventEvent of Default, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§§12.1(g), 12.1(h) or 13.1(h§12.1(p)(ii), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, Documents within two five (25) Business Days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)8.1, 8.2, 8.3, 8.4, 8.5, 8.9, 8.12, 8.13, 8.14, 8.15, 8.17, 9 or 10;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)13.1), and such failure to perform shall continue for thirty (30) for twenty (20) days after written notice of sucH failure has been given to the Borrower by the Agentdays;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000250,000 in excess of any available insurance coverage;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 1,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and or would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000100,000; or
(p) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g(S)(S)13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower Borrowers shall fail to comply with any of its their covenants contained in ss.8Sections 8, 9 or 10;
(d) the Borrower Borrowers or any of the other Transaction Parties their Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty fifteen (2015) days Business Days after written notice of sucH such failure has been given to the Borrower Borrowers by the Administrative Agent;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties their Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any of the other Transaction Parties their Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations in each case in an aggregate amount of greater than $500,000;
(g) the any Borrower or any of the other Transaction Parties their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the any Borrower or any of the other Transaction Parties their Subsidiaries or of any substantial part of the assets of the any Borrower or any of the other Transaction Parties their Subsidiaries or shall commence any case or other proceeding relating to the any Borrower or any of the other Transaction Parties 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 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 any Borrower or any of the other Transaction Parties their Subsidiaries and the any Borrower or any of the other Transaction Parties their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or any of the other Transaction Parties 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 in respect of the any Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) sixty days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties their Subsidiaries that, with other outstanding final judgments, undischarged, against the any Borrower or any of the other Transaction Parties their Subsidiaries exceeds in the aggregate $5,000,0003,500,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the any Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the 1,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Administrative Agent determines in -------- its reasonable discretioN discretion that such event (A) could be expected to result in liability of the any Borrower or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the any Borrower or any of the other Transaction Parties their Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the any Borrower or any of the other Transaction Parties their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties their Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the any Borrower or any of the other Transaction Parties their Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the any Borrower or any the other Transaction Partiesof their Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the such Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or any assets of such Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000100,000; or
(p) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g-------- Sections 13.1(g), 13.1(h) or 13.1(h13.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Us Xpress Enterprises Inc)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8ss.ss.10.1, 9 10.4, 10.6, 10.12, 10.14, 11.1 through 11.6, 11.9, 11.10, 12 and 29 hereof; 64 -57-
(d) PFR or 10the Borrower shall fail to perform any term, covenant or agreement contained herein (other than those specified in subsections (a), (b) and (c), above) and such failure shall continue for 30 days;
(de) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.115.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(ef) any representation or warranty of PFR or the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) the Borrower or any of PFR, its Subsidiaries, or the other Transaction Parties General Partner shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount greater than $5,000,000 in the aggregate250,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding in an aggregate amount greater than $5,000,000 in the aggregate, 250,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(gh) the Borrower or any of PFR, its Subsidiaries, or the other Transaction Parties General Partner shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties such Person(s) or of any substantial part of the assets of the Borrower or any of the other Transaction Parties such Person's or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties such Person(s) and the Borrower or any of the other Transaction Parties such Person(s) shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or PFR, any of its Subsidiaries, or the other Transaction Parties General Partner that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties such Person(s) exceeds in the aggregate $5,000,0001,000,000;
(jk) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, rescinded 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 or on behalf of the Borrower or any of the other Transaction Parties Perkins Group 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 determination that, or 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;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(o) the Borrower or any of the other Transaction Parties Perkins Group shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000250,000; or
(pq) if any person other than the General Partner or group of persons (within the meaning of Section 13 PRI shall at any time be or 14 become a general partner of the Securities Exchange Act Borrower, or if any Person other than PFR shall at any time be or become a limited partner of 1934, as amendedthe Borrower;
(r) if any Person other than the General Partner or PRI shall at any time be or become a general partner of PFR; or
(s) if any Person and its Affiliates (other than PRI) 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%) collectively, whether directly or indirectly, own or control 50% or more of the outstanding shares equity or ownership interests of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)PFR; then, and in any such event, so long as the same may be continuing, (x) the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents Documents, and (y) BKB may by notice in writing to the Borrower declare all amounts owing with respect to the Reimbursement Obligations to be, and in either case they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gss.ss.15.1(h), 15.1(i) or 13.1(h15.1(k), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Perkins Family Restaurants Lp)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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 paymentpayment (including, without limitation, amounts due under §2.7 and §3.8);
(b) the Borrower or any of the other Transaction Parties Borrowers shall fail to pay any interest on the Loans, the commitment fee, or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan DocumentsDocuments (including, within two (2without limitation, amounts due under §8.17) Business Days after the day on which when 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, and such failure continues for five (5) days;
(c) the any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of its their respective covenants contained in ss.8§§8.1, 8.6, 8.7, 8.8, 8.9, 8.12, 8.21, 8.22, 8.23, 9 or 10;
(d) the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents Document (other than those specified elsewhere in this ss.
13.1§13) and such failure continues for twenty thirty (2030) days after written notice of sucH failure has been given to the Borrower by the Agentdays;
(e) any representation or warranty of the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, Leases (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit which obligations exceed total in an aggregate amount in excess of $5,000,000 in the aggregate, 10,000,000; or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding (x) in respect of any Recourse obligations or credit or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $5,000,000 10,000,000, in the aggregate, either case for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;, or an "Event of Default" shall occur and be continuing under the Note Purchase Agreement that permits acceleration; or (iii) default in any payment obligation under a Hedge Agreement, and such default shall continue after any applicable grace period contained in such Hedge Agreement or any other agreement or instrument relating thereto; or (iv) becomes obligated to purchase or repay Indebtedness (other than the Obligations) before its regular maturity or before its regularly scheduled dates of payment in an aggregate principal amount of at least $10,000,000, as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests or the exercise by either Borrower or any Subsidiary of a contractual right to prepay such Indebtedness).
(g) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries or shall commence any case or other proceeding relating to the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries and the Borrower (i) any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition petition, application, case or application other proceeding shall not have been dismissed within forty-five continue undismissed, or unstayed and in effect, for a period of sixty (4560) days following the filing thereofdays;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries 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 any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents or any material provision of any Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksRequired Lenders (or all Lenders if required under §26), or any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the any Borrower or any of the other Transaction Parties party thereto its Subsidiaries or any Guarantor or any of their respective stockholdersits Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(k) any "Event of Default" or default (after notice and expiration of any period of grace, to the extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or provided in any of the other Loan Documents, shall occur and be continuing;
(l) any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the 1,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0001,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) Section 302 and Section 303 of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the any Borrower or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000, and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;; or
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(pi) any person or group of persons (within the meaning of Section Sections 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 thirty percent (30%a) 20% or more of the outstanding shares of common stock of Sovran, or (b) 33% or more in the Borroweraggregate of the outstanding limited partnership interests of SALP (other than by Sovran and its wholly-owned Subsidiaries); or, (ii) Holdings ceasing to be the sole general partner and sole investment manager of SALP; (iii) Sovran and its wholly-owned Subsidiaries cease to beneficially own 100% of the capital stock of Holdings; or (iv) during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Sovran on the first day of such period (together with directors whose election by the Board of Directors or whose nomination for election by Sovran's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Restatement Date or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Sovran; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowereach Borrower and each Guarantor; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§13.1(g) or §13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Administrative Agent or any Bankaction by the Lenders or the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Events of Default and Acceleration. If any of the following events ("Events of DefaultEventsofDefault" 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:
(a) the any Borrower shall fail to pay any principal of the Revolving Credit Loans, Swing Line Loans or any Reimbursement Obligation when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans or the Swing Line Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) the any Borrower shall fail to comply with any of its covenants contained in ss.8§§8.1, 8.2 (other than, with respect to CAI, moves within the State of California or with respect to CAI Barbados, moves within Barbados), 8.4, 8.5, 8.9, 8.12, 9 or 1010 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement);
(d) the any Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
§13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower Borrowers by the Administrative Agent;
(e) any representation or warranty of the any Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) the any Borrower or any of the other Transaction Parties its Subsidiaries shall (x) fail to pay at maturity, or within any applicable period of grace, (i) any obligations obligation for borrowed money or credit received or in an aggregate principal amount in excess of $10,000,000, (ii) any obligation in respect of any Capitalized Leases, which obligations exceed Leases in an aggregate amount in excess of $5,000,000 in the aggregate10,000,000, or (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrowers and their Subsidiaries thereunder exceeds $10,000,000, or (y) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound referenced in clauses (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, i) through (iii) above for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gi) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the such Borrower , such Guarantor or any of the other Transaction Parties such Material Subsidiary or of any substantial part of the assets of the Borrower such Borrower, such Guarantor or any of the other Transaction Parties such Material Subsidiary or shall commence any case or other proceeding relating to the Borrower such Borrower, such Guarantor or any of the other Transaction Parties such Material Subsidiary 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 (ii) if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower any Borrower, any Guarantor or any of the other Transaction Parties and the Borrower Material Subsidiary and, with respect to this clause (ii) only, (x) such Borrowers, such Guarantor or any of the other Transaction Parties such Material Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or (y) such petition or application shall not have been dismissed within forty-five thirty (4530) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary 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 any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the any Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
(j) reserved;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative Agent's 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the any Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(kl) the any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan in connection with the termination of a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the 5,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0005,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1§302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower Borrowers or any of their Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 5,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien Lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(lm) the Borrower any Borrower, any Guarantor or any of the other Transaction Parties Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(mn) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the any Borrower or any of the other Transaction Parties its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(no) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the any Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(op) the any Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the any Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the such Borrower or such other Transaction Party Subsidiary included in the Borrowing Base or the Domestic Borrowing Base or any assets of any Borrower or such Subsidiary not included in the Borrowing Base or the Domestic Borrowing Base but having a fair market value in excess of $1,000,0005,000,000; or
(pq) any person or group a Change of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Control 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations and Swing Line Loans to be, and they shall thereupon forthwith become, immediately due and payable and the require the Borrowers to provide Cash Collateral for all L/C Exposure, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers; PROVIDED provided that in the event of any Event of Default specified in ss.ss.13.1(g§§13.1(g) or 13.1(h), all such amounts shall become immediately due and payable and the Borrowers shall be required to provide Cash Collateral for all L/C Exposure, in each case, automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's feeFees, or other sums due hereunder or under any of the other Loan Documents, within two five (25) Business Days after the day on which of when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8(S)(S)8.1, 8.4, 8.5.1, the first sentence of 8.6, 8.12, 8.13, 9 or 10;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateLease, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding Lease in each case in excess of $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties its Significant Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Significant Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Significant Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties its Significant 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 the other Transaction Parties its Significant Subsidiaries and the Borrower or any of the other Transaction Parties its Significant Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties its Significant Subsidiaries 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 or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective its stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 10,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,00010,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1(S)302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 10,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Significant Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen thirty (1530) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Significant Subsidiaries if such event or circumstance is not covered by business interruption insurance and would could reasonably be foreseen to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any a Change of the other Transaction Parties Control shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g(S)(S)13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Events of Default and Acceleration. If any of the following events ---------------------------------- ("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, time "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation Loan when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, Loan or any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower or any of its Subsidiaries shall fail to comply with any of its covenants contained in ss.8(S)5, 9 (S)6 or 10(S)7 hereof or any of the covenants contained in any other Loan Documents;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1(S)11) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the AgentLender;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove is determined by the Lender to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregatecapitalized leases, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, capitalized leases for such period of time as would permit (assuming the giving of appropriate notice if required) , the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereofSubsidiaries;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding uninsured final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000100,000.00;
(ji) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case otherwise than with the express prior written agreement, consent or approval of the Banks, rescinded 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersBorrower, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kj) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Lender shall have determined in its reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the on such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 100,000.00 and (Bi) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States PBGC or District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (ii) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(lk) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orSubsidiaries;
(pl) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) there shall have acquired beneficial ownership (within occurred any material adverse change, in or to the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) assets, liabilities, financial condition, or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors business operations of the Borrower or any of its Subsidiaries;
(m) any change in the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares ownership of the capital stock of Hadco Santa Clarx (on a fully diluted basis)the Borrower, other than transfers amongst the existing stockholders as of the date hereof; then, and in any such event, so long as the same may be continuing, the Agent Lender may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower Borrower, declare all amounts owing with respect to this Credit Agreement, the Notes Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, demand protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; PROVIDED provided that in the event of any Event of -------- Default specified in ss.ss.13.1(g) or 13.1(h(S)11.1(g), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("Events of DefaultEVENTS 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, "DefaultsDEFAULTS") shall occur:
(a) any of the Borrower Borrowers shall fail to pay any principal of, or interest on the Loans, the Letter of the Loans Credit Fee, commitment fee, or any Reimbursement Obligation other fee or expense hereunder when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which 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) the Borrower Borrowers shall fail to comply with any of its their covenants contained in ss.8ss.10, 9 11 or 1012;
(dc) the Borrower or any of the other Transaction Parties Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.115.1) and such default shall continue for twenty a period of ten (2010) days after written notice of sucH failure has been given to the Borrower by the Agentoccurrence thereof;
(ed) any representation or warranty of the Borrower or any of the other Transaction Parties Borrowers in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fe) any of the Borrower Borrowers shall default in the payment when due of any principal of or interest on any postpetition Indebtedness, or any pre-petition Indebtedness if, by order of the Bankruptcy Court issued with respect to such pre-petition Indebtedness, the default thereunder entitles the holder thereof to relief from the automatic stay of ss.362 of the Bankruptcy Code, in excess of $250,000 in the aggregate of such postpetition or pre-petition Indebtedness, or any event specified in any note, agreement, indenture or other document evidencing or securing any such postpetition Indebtedness shall occur if the effect of such event is to cause, or (with the giving of notice or the lapse of time or both) to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause such Indebtedness to become due, or to be prepaid in full prior to its stated maturity; or any of the other Transaction Parties Borrowers shall fail to pay at maturitydefault in the payment when due of any amount in excess of $250,000 in the aggregate under any postpetition Derivative Transaction, or within any applicable period event specified in any postpetition Derivative Transaction to which any of gracethe Borrowers is a party shall occur if the effect of such event is to cause, any obligations for borrowed money or credit received (with the giving of notice or the lapse of time or both) to permit, termination or liquidation payments in respect of such postpetition Derivative Transaction in excess of $250,000 to become due;
(f) any Capitalized Leasesof the Borrowers shall be enjoined from conducting any part of its business as a debtor in possession, there shall occur any act of terrorism or other "force majeure" event disrupting any material portion of the businesses of the Borrowers, or there shall occur any loss or change in any license or permit of any of the Borrowers, which obligations exceed $5,000,000 in each such case referred to in this clause (f) would reasonably be expected to have a material adverse effect on the aggregateBorrowers, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time considered as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereofa whole;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, any final judgment against the Borrower or any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case otherwise than with ; or the express prior written agreement, consent or approval Administrative Agent's Lien on any of the BanksCollateral shall cease to be perfected or have the priority contemplated by this Credit Agreement or the Final Order, or any action at law, suit or in equity or other legal proceeding to cancel, revoke revoke, rescind or rescind otherwise challenge any of the Loan Documents or the Liens securing the Obligations shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholders, Borrowers; or any court or any other governmental or regulatory authority Governmental 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 Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kh) (i) any of the Borrower Borrowers or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding in excess of $2,000,000250,000; (ii) any of the Borrower Borrowers or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding in an amount in excess of $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: 250,000; (iiii) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided ) in an amount in excess of $250,000 shall occur and the Administrative Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower to the PBGC or the Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; (iiiv) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iiiv) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, any Facility Fee, any Utilization Fee, the Agent's fee, or other sums due hereunder or under any of the other Loan Documents, within two five (25) Business Days days after the day on which 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) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 Sections 8 or 109;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.112.1) for twenty (20) days after written notice of sucH such failure has been given to the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 Leases, which in the aggregateaggregate represents Indebtedness of $2,000,000 or more, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or if any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) the Borrower or any of the other Transaction Parties Significant Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties Significant Subsidiary or of any substantial part of the assets of the Borrower or any of the other Transaction Parties Significant Subsidiary or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties Significant Subsidiary 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 the other Transaction Parties Significant Subsidiary and the Borrower or any of the other Transaction Parties Significant Subsidiary shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five sixty (4560) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties Significant Subsidiary 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 or any Significant Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (3045) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents Guaranties shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; 5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,0005,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1Section 302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretioN discretion that such event (A) could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 5,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of the such Guaranteed Pension Plan; or (ii) the appointment by a United States District court Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties Significant Subsidiary shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(on) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,0005,000,000; or
(po) 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 thirty percent (30%) % or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Borrower; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 12.1(g) or 13.1(h12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("Events of DefaultEVENTS 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, "DefaultsDEFAULTS") shall occur:
(a) any of the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Administrative Agent's fee, the fronting fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) any of the Borrower Borrowers or their Subsidiaries shall fail to comply with any of its covenants contained in ss.8Section 9, 9 10 or 1011 or any of the covenants contained in any of the Mortgages or in the Debenture;
(d) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1Section 14.1 or those which by their terms expressly exclude any grace period for any non-compliance therewith) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower TransTechnology by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received received, or in respect of any Capitalized Leases, Leases as to which the aggregate principal amount of lease obligations then outstanding exceed $5,000,000 in the aggregate1,000,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received or in respect of any such Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the such Borrower or any of the other Transaction Parties Subsidiary or of any substantial part of the assets of the such Borrower or any of the other Transaction Parties Subsidiary or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties Borrowers or their Subsidiaries and the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties Borrowers and their Subsidiaries exceeds in the aggregate $5,000,0002,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescindedrescinded or the Administrative 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders (and, notwithstanding anything herein to the contrary, if any guaranty shall be cancelled, terminated, revoked or rescinded without the consent of the Lenders), 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 or on behalf of the Borrower or any of the other Transaction Parties Borrowers or 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower TransTechnology or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 250,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of Xxxxxx Xxxxxxxx Xxxxx xx a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall be 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 order shall continue in has a material adverse effect for more than thirty (30) dayson the business or financial condition of such Borrower or Subsidiary;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the such Borrower and the other Transaction Parties, considered as a wholeor Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the such Borrower and the other Transaction Parties, considered as a wholeor Subsidiary;
(o) the Borrower or any of the other Transaction Parties Borrowers or their Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against any of the Borrowers or threatened against the Borrower or any the other Transaction Partiestheir Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the such Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,000; or2,000,000;
(p) 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 thirty percent (30%) 35% or more of the outstanding shares of common stock of the BorrowerTransTechnology; or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower TransTechnology on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)TransTechnology; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks Lenders shall, by notice in writing to the Borrower Borrowers declare all amounts owing with respect to this Credit Agreement, the Loans, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the BorrowerBorrowers; PROVIDED that in the event of any Event of Default specified in ss.ss.13.1(gSection 14.1(g) or 13.1(h14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any BankLender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Revolving Credit Loans, the commitment feeunused credit fees, syndication fees, any Letter of Credit Fee, the Agent's ’s administrative fee, or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and such failure shall continue for a period of fifteen (15) days;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8§§8.5 through 8.13, 9 or 1010 and Borrower shall fail to cure the same within fifteen (15) days;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
§13.1) for twenty fifteen (2015) days Business Days after the earlier of (i) written notice of sucH such failure has been given to the Borrower by the AgentAgent or (ii) the date on which the Borrower shall become aware thereof;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) there shall occur a default or event of default (in each case which shall continue beyond the Borrower or expiration of any applicable grace periods) which permits the acceleration of the other Transaction Parties shall fail to pay at maturity, or within maturity of any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized LeasesCapital Leases of the Borrower, and the aggregate amount of all such obligations, credit and Capital Leases with respect to which obligations exceed a default or an event of default has occurred exceeds $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;1,000,000.
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final non-appealable judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Guarantor or Borrower or any of the other Transaction Parties 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Majority Banks shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 500,000 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) daysdays and would reasonably be expected to have a Material Adverse Effect;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties its Subsidiaries, if such event or circumstance is not covered by business interruption insurance and would reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would reasonably be expected to have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeMaterial Adverse Effect;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having would reasonably be expected to have a fair market value in excess of $1,000,000; orMaterial Adverse Effect;
(p) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) Guarantor 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally time own directly or beneficially own indirectly less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx the Borrower (on a fully diluted basis), as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Borrower; or
(q) the Borrower shall at any time own directly or indirectly less than one hundred percent (100%) of the shares of capital stock of WNG Holdings (on a fully diluted basis), as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of WNG Holdings. then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§§13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Weider Nutrition International Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation reimbursement obligations with respect to draws on the Letters of Credit when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, Loans within five (5) days of the commitment feedate that the same shall become due and payable, any Letter other reimbursement obligations with respect to the Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents, Documents within two five (25) Business Days days after the day on which the same shall become due and payablenotice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to comply with perform any of its covenants other term, covenant or agreement contained in ss.8(i) §7.6(a), 9 (ii) §7.20, (iii) §8, or 10(iv) §9;
(d) any of the Borrower or any of the other Transaction Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1§12 (including, without limitation, §12.2 below) or in the other Loan Documents), and such failure shall continue for twenty thirty (2030) days after Borrower receives from Agent written notice thereof, and in the case of sucH failure has been given a default that cannot be cured within such thirty (30)-day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Agent’s original notice; provided that with respect to any defaults under §7.4, §7.5, §7.7, or §7.9, the Borrower by the Agentthirty (30) day cure period described above shall be reduced to a period of ten (10) days and no additional cure period shall be provided with respect to such defaults;
(e) any material representation or warranty made by or on behalf of the Borrower Credit Parties or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(f) the Borrower Any (a) Credit Party defaults under any Recourse Indebtedness in an aggregate amount equal to or greater than $25,000,000 with respect to all uncured defaults at any of the other Transaction Parties shall fail to pay at maturitytime, or within (b) Credit Party or Subsidiary thereof defaults under any applicable period of grace, Non-Recourse Indebtedness in an aggregate amount equal to or greater than $75,000,000 with respect to all uncured defaults at any obligations for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereoftime;
(g) any of the Borrower or any of the other Transaction Parties Credit Party, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower or other Credit Party or any such substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five ninety (4590) days following the filing or commencement thereof;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower or other Credit Party or adjudicating any of the other Transaction Parties such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against Credit Party that, either individually or in the aggregate, exceed in excess of $5,000,000.00 in the case of the REIT Guarantor or the Borrower or $500,000.00 in the case of any Subsidiary Guarantor;
(k) any of the other Transaction Parties that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000;
(j) if any of the material Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksMajority Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersCredit Parties, or any court or any other governmental or regulatory authority Governmental Authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) the Borrower failure of any Credit Party or any ERISA Affiliate incurs any liability its Subsidiaries to remediate within the PBGC time period permitted by applicable law or lawful governmental order (or within a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; reasonable time given the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any nature of the following occurs problem if no specific time period has been given) material environmental matter with respect to a Hazardous Substances related to (i) any Pool Properties or (ii) any other Real Estate whose aggregate book values are in excess of Ten Million Dollars ($10,000,000) after all administrative hearings and appeals have been concluded or waived;
(m) with respect to any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable discretioN that Event shall have occurred and such event (A) could reasonably would be expected to result in liability of any of the Borrower Credit Parties to pay money to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,000,000 and one of the following shall apply with respect to such event: (Bx) could constitute grounds for such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (iiy) a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iiiz) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there any Change of Control shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(o) the Borrower or any of the other Transaction Parties shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; or
(p) 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 thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in upon any such event, so long as the same may be continuingEvent of Default, the Agent may, and upon the request of the Majority Banks Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit, and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the event the Borrower fails to deliver such cash collateral, upon demand by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any Bankremaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payablepayable or required, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower or any of the other Transaction Parties its Subsidiaries (i) shall fail to pay any interest on the LoansLoans (A) within one (1) day following the date when the same shall become due and payable, other than at the commitment fee, stated date of maturity or any Letter accelerated date of Credit Fee, maturity or (B) when the Agent's fee, same shall become due and payable at the stated date of maturity or other any accelerated date of maturity or (ii) shall fail to pay sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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) the Borrower shall fail to comply with any of its covenants contained in ss.8Section 8 (other than Sections 8.6(b), 8.13 and 8.17), 9 or 10;
(d) the Borrower or any of the other Transaction Parties its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
Section 13.1) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties its Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregate, or (ii) fail to observe or perform any material term, covenant covenant, or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing borrowed money or credit received received, or in respect of any Capitalized Leases exceeding Leases, in each case under this subparagraph (f) in excess of $5,000,000 in 1,000,000.00, including without limitation, under the aggregateSenior Loan Documents or under the Trade Vendor Term Sheet or the Trade Vendor Extension Agreement, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, whether or not any such acceleration has taken place;
(g) the Borrower or any of the other Transaction Parties its Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties its Subsidiaries or of any substantial part of the assets of the Borrower or any of the other Transaction Parties its Subsidiaries or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 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 the other Transaction Parties its Subsidiaries and the Borrower or any of the other Transaction Parties its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 in respect of the Borrower or any Subsidiary of the other Transaction Parties Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties its Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties its Subsidiaries exceeds in the aggregate $5,000,0001,500,000.00;
(j) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescindedrescinded or the Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower or any of the other Transaction Parties its 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 determination that, or 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;
(k) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 1,500,000.00 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties its Subsidiaries shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen ten (1510) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility retail locations of the Borrower or any of its Subsidiaries constituting twenty-five percent (25%) or more of the other Transaction Parties Borrower's and its Subsidiaries retail locations if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeinsurance;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of the other Transaction Parties its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeor such Subsidiary;
(o) the Borrower or any of the other Transaction Parties its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought or threatened against the Borrower or any the other Transaction Partiesof its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party Subsidiary having a fair market value in excess of $1,000,0001,500,000.00; or
(p) 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 thirty percent (30%) % or more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)Borrower; then, and in any such event, event so long as the same may be continuing, the Agent Agents may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(gSections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent Agents or any BankLenders.
Appears in 1 contract
Samples: Bridge Term Loan Credit Agreement (Whitehall Jewellers Inc)
Events of Default and Acceleration. If any of the following events ("“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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the commitment fee, any Letter Letters of Credit Fee, the Agent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which Documents when 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) any of the Borrower Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to comply with perform any of its covenants other term, covenant or agreement contained in ss.8, 9 or 10§§9.2-9.11 applicable to such Person;
(d) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified elsewhere in the other subclauses of this ss.
13.1) for twenty (20) days after written notice of sucH failure has been given to §12 or in the Borrower by the Agentother Loan Documents);
(e) any representation or warranty made by or on behalf of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower Borrower, any Guarantor or any of the other Transaction Parties their respective Subsidiaries shall fail to pay when due (including without limitation at maturity), or within any applicable period of grace, any obligations obligation for borrowed money or credit received or in respect of any Capitalized Leases, which obligations exceed $5,000,000 in the aggregateother Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock)bound, evidencing or securing any such borrowed money or credit received or in respect of any Capitalized Leases exceeding $5,000,000 in the aggregate, other Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the prepayment, redemption or purchase thereof; provided, however, that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $20,000,000.00 or Non-Recourse Indebtedness totaling in excess of $50,000,000.00;
(g) any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower for it or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or its assets, (ii) shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties it under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing, ; provided that the events described in this §12.1(g) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or if an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(h) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against the Borrower any such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any of the other Transaction Parties jurisdiction, now or hereafter in effect, and the Borrower or any of the other Transaction Parties such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition petition, application, case or application proceeding shall not have been dismissed within forty-five sixty (4560) days following the filing or commencement thereof; provided that the events described in this §12.1(h) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(hi) a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower Borrower, the Guarantors, or any of the other Transaction Parties their respective Subsidiaries or adjudicating any such Person, 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 or any of the other Transaction Parties such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; provided that the events described in this §12.1(i) as to any Subsidiary of the Borrower that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary shall not constitute an Event of Default unless the value of the assets of any such Subsidiary or Subsidiaries that is not a Subsidiary Guarantor or an Unencumbered Property Subsidiary (calculated, to the extent applicable, consistent with the calculation of Consolidated Total Asset Value) subject to an event or events described in §12.1(g), §12.1(h) or §12.1(i) individually exceeds $30,000,000.00 or in the aggregate exceeds $50,000,000.00;
(ij) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, any whether or not consecutive, one or more uninsured or unbonded final judgment judgments against Parent, the Borrower or any of the other Transaction Parties their respective Subsidiaries that, with other outstanding final judgments, undischarged, against the Borrower either individually or any of the other Transaction Parties exceeds in the aggregate aggregate, exceed $5,000,00015,000,000.00;
(jk) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersGuarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of Parent, the Borrower or any ERISA Affiliate incurs of their respective Subsidiaries shall occur or any liability to sale, transfer or other disposition of the PBGC or a Guaranteed Pension Plan pursuant to Title IV assets of ERISA in an aggregate amount exceeding $2,000,000; any of Parent, the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or any of the following occurs other Loan Documents;
(m) with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Required Lenders shall have determined in its their reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of any of the Borrower Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 10,000,000.00 and (B) such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) or a trustee shall have been appointed by the appointment by a United States District court of a trustee Court to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renewBorrower, any license or permit now held or hereafter acquired by the Borrower Guarantor or any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the other Transaction Parties if such lossforfeiture of (i) any assets of Borrower, suspension, revocation any Guarantor or failure any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected to renew would have a material adverse effect on Material Adverse Effect, or (ii) any Eligible Real Estate included in the business or financial condition calculation of the Borrower and the other Transaction Parties, considered as a wholeUnencumbered Asset Value;
(o) any Guarantor denies that it has any liability or obligation under the Borrower Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or any other Transaction Parties shall be indicted for a state or federal crimeLoan Document, or shall fail to observe or comply with any civil term, covenant, condition or criminal action shall otherwise have been brought or threatened against agreement under the Borrower Guaranty or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orLoan Document;
(p) any person or group Change of persons Control shall occur; or
(within the meaning q) an Event of Section 13 or 14 Default under any of the Securities Exchange Act of 1934, as amended) other Loan Documents 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 more of the outstanding shares of common stock of the Borrower; or, during any period of twelve consecutive calendar months, individuals who were 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 or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Notes, the Letters of Credit and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g§12.1(g), §12.1(h) or 13.1(h§12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any Banksuch Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrower will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and the Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower.
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Events of Default and Acceleration. If any of the following events ("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:
(a) the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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 and such non-payment, shall not have been cured within 5 days of such due date;
(b) the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, Commitment Fee or other sums due hereunder or under any of the other Loan Documents, within two (2) Business Days after the day on which when 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 paymentpayment and such non-payment shall not have been cured within 5 days following receipt of written notice of any amounts due;
(c) the Borrower shall fail to comply with any of its covenants contained in ss.8, 9 or 10[SECTION]8 hereof;
(d) the Borrower or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this ss.
13.1[SECTION]11) for twenty fifteen (2015) days after written notice of sucH such failure has been given to the Borrower by the AgentLender;
(e) any representation or warranty of the Borrower or any of the other Transaction Parties BCLP in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of the other Transaction Parties shall fail to pay at maturity, or within any applicable period of grace, any obligations for borrowed money or credit received or obligation in respect of any Capitalized Leasesdebt or similar monetary obligations, whether direct or indirect of the Borrower which obligations exceed $5,000,000 exceeds in the aggregate, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of Margin Stock), evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases exceeding aggregate $5,000,000 in the aggregate250,000, for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Borrower or any of the other Transaction Parties shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower or any of the other Transaction Parties or of any substantial part of the assets of the Borrower or any of the other Transaction Parties or shall commence any case or other proceeding relating to the Borrower or any of the other Transaction Parties 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 the other Transaction Parties and the Borrower or any of the other Transaction Parties shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereoftherein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of the other Transaction Parties 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 or any of the other Transaction Parties in an involuntary case under federal federal, state or other bankruptcy laws law as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (3060) days, whether or not consecutive, any final judgment against the Borrower or any of the other Transaction Parties that, alone or with other outstanding final judgments, undischarged, against the Borrower or any of the other Transaction Parties exceeds in the aggregate $5,000,000250,000;
(j) the Borrower shall be in material default under the Lease or if for any reason the Lease shall not be in full force and effect during the term of this Credit Agreement;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded, in each case rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLender, 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 or on behalf of the Borrower or any of the other Transaction Parties party thereto or any of their respective stockholdersits general partner, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(kl) the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $2,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a any Guaranteed Pension Plan: (i) , an ERISA Reportable Event, or a failure to make a required installment or other payment (within Event shall have occurred and the meaning of ss.302(f)(1) of ERISA), provided the Agent determines Lender shall have determined in its reasonable discretioN discretion that such event (A) reasonably could be expected to result in liability of the Borrower to the PBGC or the such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and (B) could constitute grounds for the termination of such Plan 500,000; or a trustee shall have been appointed by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District court of a trustee to administer such Plan; or (iii) the institution by the PBGC of shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of the other Transaction Parties shall be 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 order shall continue in effect for more than thirty (30) days;
(m) there the Borrower shall occur be indicted for a federal crime, a punishment for which could include the forfeiture of any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility material assets of the Borrower or any of included in the other Transaction Parties if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and the other Transaction Parties, considered as a wholeCollateral;
(n) there shall occur BCLP shall, at any time, own less than all limited partnership interests in the lossBorrower, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by which limited partnership interests represent a 99% interest in the Borrower or any and if control of Boston Celtics Corporation, the other Transaction Parties if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition General Partner of the Borrower and Celtics, Inc., the other Transaction PartiesGeneral Partner of BCLP, considered which general partnership interests represent, respectively, a 1% interest in the Borrower and a 1% interest in BCLP is not held by the Xxxxxx Family. For purposes of this [SECTION]11.1(n) control shall mean ownership of more than 50% of outstanding voting shares of such entity and Xxxxxx Family shall mean Xxxx X. Xxxxxx and his family as a wholedetermined with reference to Section 318(a) of the Code including attributions from any partnership, estate, trust or corporation;
(o) the Borrower shall be in material default under the NBA Charter and the NBA shall have commenced action against the Borrower in connection with such default or if the franchise rights granted to the Borrower pursuant to the NBA Charter shall be terminated, suspended, canceled or rescinded during the term of this Credit Agreement or if the Borrower ceases for any reason to be a member in good standing of the NBA;
(p) if any of the other Transaction Parties Security Documents, once executed and delivered, shall in any material respect fail to provide to the Lender the liens intended to be indicted for a state created thereby or federal crimecease to be in full force and effect, or the validity thereof or the applicability thereof to the Loans, the Note, or any civil other obligations purported to be secured or criminal action guaranteed thereby or any part thereof shall otherwise have been brought be questioned or threatened against disaffirmed by or on behalf of the Borrower or any the other Transaction Parties, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such other Transaction Party having a fair market value in excess of $1,000,000; orparty thereto;
(pq) if any person material change of ownership or group reorganization of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) BCLP shall have acquired beneficial ownership (within occurred without the meaning prior written consent of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or more of the outstanding shares of common stock of the Borrower; orLender, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period consent shall cease to constitute a majority of the board of directors of the Borrower or the Borrower shall, at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of Hadco Santa Clarx (on a fully diluted basis)not be unreasonably withheld; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, Lender may by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 provided that in the event of any Event of Default specified in ss.ss.13.1(g[SECTION]11.1(g) or 13.1(h[SECTION]11.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any BankLender.
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Samples: Credit Agreement (Boston Celtics Limited Partnership)
