Events of Default and Acceleration. If any of the following events (“Events of Default”) 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 accelerated date of maturity or at any other date fixed for payment; none of the foregoing is a Non-Material Breach. (b) the Borrower shall fail to pay any interest on the Loans, the Facility Fee, any Letter of Credit Fee or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15) 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; none of the foregoing is a Non-Material Breach. (c) the Borrower, MCRC or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten (10) days of the occurrence of same; §8 (except with respect to §8.4 for Non-Material Breaches only, or §8.5); or §9; none of the foregoing is a Non-Material Breach. (d) the Borrower, MCRC or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §12.1(d)). (e) any representation or warranty of the Borrower, MCRC or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach). (f) the Borrower, MCRC or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof) or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof), for such period of time (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 require any such obligations to be prepaid, redeemed, repurchased or defeased prior to the maturity thereof; and none of the foregoing is a Non-Material Breach. (g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days. (h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days. (i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) exceeds in the aggregate $10,000,000. (j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC or any of its Subsidiaries, or any court or any other 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 is illegal, invalid or unenforceable as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement. (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 or denied, 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) 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 $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 $5,000,000, 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 (A) 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 $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 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; to the extent that any breach of §6.16 or §7.18 is a matter that constitutes a specific breach of a provision of this §12.1(l), the breach of §6.16 or §7.18 shall not be a Non-Material Breach. (m) Notwithstanding the provisions of §8.3(a), (x) 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 40% or more of the outstanding shares of voting stock of MCRC in a transaction or a series of related transactions or (y) occupation of a majority of the seats (other than vacant seats) on the board of directors of MCRC by Persons who were neither (i) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRC; provided that in the event of any Event of Default specified in §12.1(g) or §12.1(h) with respect to the Borrower or MCRC, all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include the removal of the affected Property as an Unencumbered Property pursuant to a Permitted Event or otherwise so long as such removal (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRC, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Events of Default and Acceleration. If any of the following events (“Events of Default”"EVENTS OF DEFAULT") 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 accelerated date of maturity or at any other date fixed for payment; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, the Commitment Fee, the Facility Fee, any Letter of Credit Fee or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15Section 7.17) 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; none of the foregoing is a Non-Material Breach.
(c) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §Section 7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §Section 7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §Section 7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §Section 7.12; §7.19 Section 7.21 within ten (10) days of the occurrence of same; §Section 8 (except with respect to §8.4 Section 8.5 for Non-Material Breaches only, or §8.5Section 8.6); or §Section 9; none of the foregoing is a Non-Material Breach.
(d) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §Section 12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 Section 8.5 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §Section 12.1(d)).
(e) any representation or warranty of the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach).
(f) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $20,000,000 (determined in accordance with Section 9.9 hereof) or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §Section 9.9 hereof) ), or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 20,000,000 (determined in accordance with §Section 9.9 hereof), ) for such period of time (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 require (y) in respect of any such Without Recourse obligations to be prepaidor credit in an aggregate amount in excess of $50,000,000 (determined in accordance with Section 9.9 hereof), redeemed, repurchased and the holder or defeased prior to holders thereof shall have accelerated the maturity thereof; and none of the foregoing is a Non-Material Breach.
(g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of Credit Party (other than for a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) Credit Party or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries exceeds in the aggregate $10,000,00010,000,000 (other than for a Permitted Event).
(j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC any Guarantor or any of its Subsidiaries, or any court or any other Governmental Authority 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 as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement.
(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 or denied, 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) 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 $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 $5,000,000, 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 §Section 302(f)(1) of ERISA), provided PROVIDED that the Administrative Agent determines in its reasonable discretion that such event (A) 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 $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 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; to the extent that any breach of §Section 6.16 or §7.18 Section 7.20 is a matter that constitutes a specific breach of a provision of this §Section 12.1(l), the breach of §Section 6.16 or §7.18 Section 7.20 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of §8.3(aSection 8.4(a), (x) 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 40% or more of the outstanding shares of voting common stock of MCRC in a transaction or a series of related transactions and, if at any time within one (1) year following such acquisition (i) fewer than three (3) of the five (5) Key Management Individuals (as defined in Section 7.23) remain active in the executive and/or operational management in their current (or comparable) positions with MCRC or (yii) occupation individuals who were directors of MCRC on the date of such acquisition shall cease to constitute a majority of the seats (other than vacant seats) on voting members of the board of directors of MCRC by Persons who were neither (i) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; MCRC. then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRCeach Guarantor; provided PROVIDED that in the event of any Event of Default specified in §Section 12.1(g) or §Section 12.1(h) with respect to the Borrower or MCRC), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include (and for a Permitted Event shall include) the removal release of the affected Property Person(s) (other than MCRC) as an Unencumbered Property the Guarantor pursuant to a Permitted Event or otherwise Section 5 so long as such removal release (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRCthe remaining Guarantors, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty Corp)
Events of Default and Acceleration. If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or Reimbursement 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; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, the Facility Fee, any Letter of Credit Fee or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15) 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; none of the foregoing is a Non-Material Breach.
(c) the Borrower, MCRC or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten (10) days of the occurrence of same; §8 (except with respect to §8.4 for Non-Material Breaches only, or §8.5); or §9; none of the foregoing is a Non-Material Breach.
(d) the Borrower, MCRC or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §12.1(d)).
(e) any representation or warranty of the Borrower, MCRC or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach).
(f) the Borrower, MCRC or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof) or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof), for such period of time (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 require any such obligations to be prepaid, redeemed, repurchased or defeased prior to the maturity thereof; and none of the foregoing is a Non-Material Breach.
(g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) exceeds in the aggregate $10,000,000.
(j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC or any of its Subsidiaries, or any court or any other 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 is illegal, invalid or unenforceable as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement.
(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 or denied, 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) 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 $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 $5,000,000, 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 (A) 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 $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 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; to the extent that any breach of §6.16 or §7.18 is a matter that constitutes a specific breach of a provision of this §12.1(l), the breach of §6.16 or §7.18 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of §8.3(a), (x) 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 40% or more of the outstanding shares of voting stock of MCRC in a transaction or a series of related transactions or (y) occupation of a majority of the seats (other than vacant seats) on the board of directors of MCRC by Persons who were neither (i) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRC; provided that in the event of any Event of Default specified in §12.1(g) or §12.1(h) with respect to the Borrower or MCRC, all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include the removal of the affected Property as an Unencumbered Property pursuant to a Permitted Event or otherwise so long as such removal (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRC, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
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Samples: Revolving Credit and Term Loan Agreement (Mack Cali Realty L P)
Events of Default and Acceleration. If any of the following events (“Events of Default”) 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 accelerated date of maturity or at any other date fixed for payment; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, the Facility Fee, any Letter of Credit Fee Loans or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15) 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; none of the foregoing is a Non-Material Breach.
(c) the Borrower, MCRC or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten (10) days of the occurrence of same; §8 (except with respect to §8.4 for Non-Material Breaches only, or §8.5); or §9; none of the foregoing is a Non-Material Breach.
(d) the Borrower, MCRC or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §12.1(d)).
(e) any representation or warranty of the Borrower, MCRC or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach).
(f) the Borrower, MCRC or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof) or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §9.9 hereof), for such period of time (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 require any such obligations to be prepaid, redeemed, repurchased or defeased prior to the maturity thereof; and none of the foregoing is a Non-Material Breach.
(g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) 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, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) exceeds in the aggregate $10,000,000.
(j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC or any of its Subsidiaries, or any court or any other 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 is illegal, invalid or unenforceable as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement.
(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 or denied, 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) 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 $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 $5,000,000, 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 (A) 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 $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 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; to the extent that any breach of §6.16 or §7.18 is a matter that constitutes a specific breach of a provision of this §12.1(l), the breach of §6.16 or §7.18 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of §8.3(a), (x) 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 40% or more of the outstanding shares of voting stock of MCRC in a transaction or a series of related transactions or (y) occupation of a majority of the seats (other than vacant seats) on the board of directors of MCRC by Persons who were neither (i) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRC; provided that in the event of any Event of Default specified in §12.1(g) or §12.1(h) with respect to the Borrower or MCRC, all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include the removal of the affected Property as an Unencumbered Property pursuant to a Permitted Event or otherwise so long as such removal (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRC, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default”) 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 accelerated date of maturity or at any other date fixed for payment; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, the Facility Fee, any Letter of Credit Fee or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15) 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; none of the foregoing is a Non-Material Breach.
(c) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten (10) days of the occurrence of same; §8 (except with respect to §8.4 for Non-Material Breaches only, or §8.5); or §9; none of the foregoing is a Non-Material Breach.
(d) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §12.1(d)).
(e) any representation or warranty of the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach).
(f) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 20,000,000 (determined in accordance with §9.9 hereof) or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $100,000,000 (determined in accordance with §9.9 hereof), or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 20,000,000 (determined in accordance with §9.9 hereof), ) for such period of time (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 require (y) in respect of any such Without Recourse obligations to be prepaidor credit in an aggregate amount in excess of $100,000,000 (determined in accordance with §9.9 hereof), redeemed, repurchased and the holder or defeased prior to holders thereof shall have accelerated the maturity thereof; and none of the foregoing is a Non-Material Breach.
(g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of Credit Party (other than for a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) Credit Party or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries exceeds in the aggregate $10,000,00010,000,000 (other than for a Permitted Event).
(j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC any Guarantor or any of its Subsidiaries, or any court or any other Governmental Authority 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 as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement.
(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 or denied, 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) 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 $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 $5,000,000, 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 (A) 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 $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 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; to the extent that any breach of §6.16 or §7.18 is a matter that constitutes a specific breach of a provision of this §12.1(l), the breach of §6.16 or §7.18 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of §8.3(a), (x) 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 40% or more of the outstanding shares of voting stock of MCRC in a transaction or a series of related transactions and, if at any time within one (1) year following such acquisition (i) fewer than three (3) of the five (5) Key Management Individuals remain active in the executive and/or operational management in their current (or comparable) positions with MCRC or (yii) occupation individuals who were directors of MCRC on the date of such acquisition shall cease to constitute a majority of the seats (other than vacant seats) on voting members of the board of directors of MCRC by Persons who were neither MCRC. For purposes hereof, “Key Management Individuals” shall mean and include Xxxxxxxx X. Xxxxx, Xxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxx, and Xxxxxxx Xxxx and such replacement individuals as are reasonably acceptable to (iand consented to in writing by) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; Majority Lenders, then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRCeach Guarantor; provided that in the event of any Event of Default specified in §12.1(g) or §12.1(h) with respect to the Borrower or MCRC), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include (and for a Permitted Event shall include) the removal release of the affected Property Person(s) (other than MCRC) as an Unencumbered Property the Guarantor pursuant to a Permitted Event or otherwise §5 so long as such removal release (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRCthe remaining Guarantors, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default”"EVENTS OF DEFAULT") 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 accelerated date of maturity or at any other date fixed for payment; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, the Commitment Fee, the Facility Fee, any Letter of Credit Fee or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15Section 7.17) 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; none of the foregoing is a Non-Material Breach.
(c) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in: §Section 7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other sums covered by clause (b) above or principal covered by clause (a) above); §Section 7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §Section 7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §Section 7.12; §7.19 Section 7.21 within ten (10) days of the occurrence of same; §Section 7.22 within thirty (30) days of any non-compliance; Section 8 (except with respect to §8.4 Section 8.1(b), Section 8.5 for Non-Material Breaches only, or §8.5Section 8.6); or §Section 9; none of the foregoing is a Non-Material Breach.
(d) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan Document (other than those specified elsewhere in this §Section 12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 Section 8.5 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in any term, covenant or agreement covered by this §Section 12.1(d)).
(e) any representation or warranty of the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated (other than a Non-Material Breach).
(f) the Borrower, MCRC Borrower or any Guarantor or any of their respective Subsidiaries shall (i) fail to pay at maturity, or within any applicable period of grace or cure, any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $5,000,000 (determined in accordance with Section 9.9 hereof) or (y) in respect of any Without Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (determined in accordance with §Section 9.9 hereof) ), or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received (other than current obligations in the ordinary course of business) or in respect of any Capitalized Leases, in each case only Leases (x) in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 5,000,000 (determined in accordance with §Section 9.9 hereof), ) for such period of time (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 require (y) in respect of any such Without Recourse obligations to be prepaidor credit in an aggregate amount in excess of $50,000,000 (determined in accordance with Section 9.9 hereof), redeemed, repurchased and the holder or defeased prior to holders thereof shall have accelerated the maturity thereof; and none of the foregoing is a Non-Material Breach.
(g) the Borrower, MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of Credit Party (other than for a Permitted Event) 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, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) Credit Party or of any substantial part of the properties or assets of the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) or shall commence any case or other proceeding relating to the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) and (i) the Borrower, MCRC, or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating the Borrower, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) 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, MCRC or any Material Subsidiary Credit Party (excluding any Material Subsidiary which is the subject of other than for a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than thirty (30) days, any uninsured final judgment against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against the Borrower, MCRC any Guarantor or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) their respective Subsidiaries exceeds in the aggregate $10,000,00010,000,000 (other than for a Permitted Event).
(j) any of the Loan Documents or any material provision of any Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Administrative Agent, or any Guaranty shall be canceled, 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 Borrower or any of its Subsidiaries or MCRC any Guarantor or any of its Subsidiaries, or any court or any other Governmental Authority 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 as to any material terms thereof, other than as any of the same may occur from a Permitted Event permitted by this Agreement.
(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 or denied, 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) 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 $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 $5,000,000, 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 §Section 302(f)(1) of ERISA), provided PROVIDED that the Administrative Agent determines in its reasonable discretion that such event (A) 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 $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 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; to the extent that any breach of §Section 6.16 or §7.18 Section 7.20 is a matter that constitutes a specific breach of a provision of this §Section 12.1(l), the breach of §Section 6.16 or §7.18 Section 7.20 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of §8.3(aSection 8.4(a), (x) 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 40% or more of the outstanding shares of voting common stock of MCRC in a transaction or a series of related transactions and, if at any time within one (1) year following such acquisition (i) fewer than four (4) of the six (6) Key Management Individuals (as defined in Section 7.23) remain active in the executive and/or operational management in their current (or comparable) positions with MCRC or (yii) occupation individuals who were directors of MCRC on the date of such acquisition shall cease to constitute a majority of the seats (other than vacant seats) on voting members of the board of directors of MCRC by Persons who were neither (i) nominated by the board of directors of MCRC nor (ii) appointed by directors so nominated; MCRC. then, and in any such event, so long as the same may be continuing, the Administrative Agent with the consent of the Required Lenders may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this 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 and MCRCeach Guarantor; provided PROVIDED that in the event of any Event of Default specified in §Section 12.1(g) or §Section 12.1(h) with respect to the Borrower or MCRC), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the any of Administrative Agent or action by the Lenders or the Administrative Agent. A Non-Material Breach shall require that the Borrower commence and continue to exercise reasonable diligent efforts to cure such breach (which shall occur within any specific time period for curing a Non-Material Breach elsewhere set forth in this Agreement if any). Such efforts may include the removal of the affected Property as an Unencumbered Property pursuant to a Permitted Event or otherwise so long as such removal (i) cures such Non-Material Breach (ii) does not otherwise cause a Default or Event of Default, and (iii) does not have a Material Adverse Effect on the Borrower, MCRC, and their respective Subsidiaries, taken as a whole. Continuing failure of the Borrower to comply with the requirements to commence and continue to exercise reasonable diligent efforts to cure such Non-Material Breach shall constitute a material breach after notice from the Administrative Agent.
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