Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing: (a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; (b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days; (c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be; (d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI; (e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
Appears in 3 contracts
Samples: Credit Agreement (Kinder Morgan, Inc.), First Amendment (Kinder Morgan, Inc.), Revolving Credit Agreement (Kinder Morgan, Inc.)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become such payment is due and payable, (whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
), or (bii) any interest on any Loan or Loan, any fee or any other amount (other than an amount referred to in clause (ai) of this ArticleSection 9.01(a)) payable by a Loan Party under this Agreement hereunder or any other Loan Document shall not be paidpaid within five calendar days following the date on which the payment of interest, when and as the same shall become due and payable, and fee or such failure shall continue unremedied for a period of five Business Days;other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower WIL-Ireland or by any Loan Party Subsidiary herein or in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect (or, to the extent qualified by materiality or reference to Material Adverse Effect, in all respects) when made or deemed made or reaffirmed, as the case may be;; or
(dc) the Borrower any Obligor Party shall (i) fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII, (ii) fail to give any notice required by Section 7.01(d)(ii) or in Article VI;
(eiii) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained Additional Financial Covenant (subject to any grace period applicable to such Additional Financial Covenant in this Agreement (other than those specified in Section 7.01(athe Other Debt Document that contains such Additional Financial Covenant), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender ; or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
Appears in 2 contracts
Samples: Credit Agreement (Weatherford International PLC), Credit Agreement (Weatherford International PLC)
Events of Default and Remedies. 2.1 If any one or more of the following events (“Events of Default”) Default shall occur and be continuinghappen, that is to say:
(a) if (i) default shall be made in the principal payment of any Loan interest due under the Note, or any reimbursement obligation in respect the payment of any LC Disbursement shall not be paid when and as installment of principal due under the same shall become due and payableNote, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paideither such case, when and as the same shall become due and payable, and such failure default shall continue unremedied have continued for a period of five Business Days;
(c5) any representation days or warranty (ii) default shall be made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document payment of the principal of the Note, when and as the same shall become due and payable, whether at maturity or by acceleration or as part of any prepayment or otherwise, in any documenteach case, certificate as in the Note and this Mortgage provided or financial statement delivered (iii) default in connection with this Agreement or the payment of any other Loan Document Indebtedness due to any Mortgagee under this Mortgage and such default shall prove have continued for a period of five (5) days after written notice thereof, or (iv) default shall be made in the payment of any tax required by Section 1.7 to be paid and said default shall have been incorrect in continued for a period of five (5) days after written notice thereof; provided, however, that if Mortgagor, within any material respect when made or deemed made or reaffirmedtwelve (12) month period, as the case may be;
(d) the Borrower shall fail to observe make more than two (2) such payments by their due dates, said five (5) day period shall become null and void and of no further force or perform effect and failure to make payment shall become an immediate Event of Default, or
(b) if default shall be made in the due observance or performance of any covenant, condition covenant or agreement on the part of the Mortgagor contained in Section 5.01(d)(i)1.1, 5.02 1.3, 1.8, or 1.9, and such default shall have continued for a period of thirty (with respect to the Borrower’s existence30) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower Mortgagor by Mortgagees. For the purposes of this clause if any representation made in Section 1.1 shall be incorrect, it shall be deemed to be a default; or
(c) if default shall be made in the due observance or performance of any other covenant or condition on the part of the Mortgagor in the Note, the Loan Agreement or in this Mortgage contained, and such default shall have continued for a period of thirty (30) days after written notice specifying such default and demanding that the same be remedied shall have been given to the Mortgagor by Mortgagees; provided, however, if, in Mortgagees’ sole judgment said failure to comply is not capable of being cured within said thirty (30) day period and is not curable by the Administrative Agent or any Lender orpayment of money, then the Mortgagor shall have such additional time as Mortgagees deem reasonably necessary to cure such failure (but in no event will such additional time exceed sixty (60) days after the initial notice of such default) provided that (i) Mortgagor promptly proceeds to commence curing said failure to comply upon receipt of notice of said failure from Mortgagees, (ii) a Responsible Officer in the sole judgment of Mortgagees, Mortgagor thereafter diligently and continuously proceeds to cure said failure so as to cure said failure in the shortest time possible, (iii) such additional time to cure does not materially impair any rights and/or remedies of Mortgagees and will not adversely affect the completion of the Borrower becomes aware Improvements by the Completion Date and (iv) the Mortgagor furnishes to Mortgagees, upon demand of Mortgagees, such failure;documents and information with respect to Mortgagor’s curing of said failure to comply, as Mortgagees may reasonably request; or
(d) if by the order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property, or any part thereof, or of the Mortgagor shall be appointed and such order shall not be discharged or dismissed within ninety (90) days after such appointment; or
(e) if the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Mortgagor or of any substantial part of its property, or if the Mortgagor shall make any general assignment for the benefit of creditors, or if the Mortgagor shall fail generally to pay its debts as such debts become due, or if the Mortgagor shall take any action in furtherance of any of the foregoing; or
(f) if any of the creditors of the Mortgagor shall commence against the Mortgagor an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect and if such case shall not be discharged or dismissed within ninety (90) days after the date on which such case was commenced; or
(g) if final judgment for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Mortgagor and the Mortgagor shall not discharge the same or cause it to be discharged within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; or
(h) except for the Releases, if any sale, conveyance, transfer, pledge or further encumbrance, by operation of law or otherwise, of all or any part of the Mortgaged Property, of any interest therein, or in the event of any change in the ownership or composition of Mortgagor, or any further assignment of rents from the Mortgaged Property (except for the Prior Assignment), or any lease of all or substantially all of the Mortgaged Property (except for the Leases), the Leasehold Premises or the Improvements, shall occur, without the prior written consent of each Mortgagee; or
(i) if Mortgagor shall fail to maintain its legal existence in good standing in its state of incorporation; or
(j) if the Mortgagor defaults beyond any applicable notice and cure periods under any other agreement with any Mortgagee; or
(k) if any easement over, across, under or otherwise affecting the Mortgaged Property or any portion thereof shall be granted or released without each Mortgagee’s prior written consent or if there shall be a default by Mortgagor under any easement, covenant or restriction affecting the Leasehold Premises or any portion thereof or if any easement in favor of the Leasehold Premises or any portion thereof shall be terminated or modified; or
(l) if Mortgagor shall assign any lease or the rents from any lease for all or a part of the Leasehold Premises other than the Prior Assignment, without the prior written consent of each Mortgagee, or shall enter into, amend, extend, renew, abridge or otherwise modify, any lease, or shall cancel or consent to the cancellation or surrender of any lease unless in the ordinary course and in accordance with reasonably prudent management practice, or shall in any other manner materially impair the security of any Mortgagee for the payment of the debt secured by this Mortgage; or
Appears in 2 contracts
Samples: Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement (BRT Realty Trust), Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement (BRT Realty Trust)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuingoccur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this ArticleSection 7.01(a)) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidDocument, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three (3) Business Days;
(c) any representation or warranty made or, for purposes of Article III, or deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party or any Subsidiary in this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any documentreport, certificate or certificate, financial statement delivered or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect in any material respect when made or deemed made (it being understood and agreed that any representation or reaffirmed, as the case may bewarranty which is subject to any materiality qualifier shall be required to be true and correct in all respects);
(d) the Borrower any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.02(a), 5.02 5.03 (with respect to the Borrowera Loan Party’s existence) or 5.07 ), 5.08, 5.15, Article VI or in Article VIthe Side Letter;
(e) any Loan Party shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement contained in this Agreement (other than those specified in Section 7.01(aclause (a), Section 7.01(b(b) or Section 7.01(d(d)) ), or any other Loan Document and such failure shall continue unremedied for a period of (i) 10 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of Section 5.01 or 5.02 (other than Section 5.02(a)) of this Agreement or (ii) 30 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of any other Section of this Agreement or any other Loan Document;
(f) any Loan Party or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness when and as the same shall become due and payable after giving effect to any applicable grace period;
(g) (i) any event or condition occurs that results in any Material Indebtedness or Subordinated Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or Subordinated Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness or Subordinated Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or any commitment pursuant to such Material Indebtedness or Subordinated Indebtedness is cancelled or suspended; provided that (i) this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05, and (ii) no Event of Default shall be deemed to have occurred under this clause (g) in the event such Event of Default relates solely to any breach or default of the financial covenants under Section 6.12 of the First Lien Credit Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of a Loan Party or Subsidiary or its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary or for a substantial part of its assets, 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 foregoing shall be entered;
(i) any Loan Party or any Subsidiary shall (i) other than a liquidation or dissolution permitted by Section 6.03(a)(v), voluntarily appoint an administrator or commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(h), (iii) apply for or consent to the appointment of an administrator, receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for such Loan Party or Subsidiary of any Loan Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any board of director action for the purpose of effecting any of the foregoing;
(j) any Loan Party or any Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not to, or fail generally, to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $500,000 in excess of insurance coverage therefor (as provided by an underwriter acceptable to Administrative Agent, where such underwriter has admitted coverage in writing, and such insurance coverage otherwise fully complies in all respects with this Agreement) shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of twenty (20) consecutive Business Days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Subsidiary to enforce any such judgment or any Loan Party or any Subsidiary shall fail within twenty (20) Business Days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect or to result in liabilities in excess of $500,000;
(m) a Change in Control shall occur;
(n) the Loan Guaranty or any Obligation Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty or any Obligation Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty or any Obligation Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under the Loan Guaranty or any Obligation Guaranty to which it is a party, or shall give notice to such effect, including, but not limited to notice of termination delivered pursuant to Section 10.08 or any notice of termination delivered pursuant to the terms of any Obligation Guaranty;
(o) it is or becomes unlawful for a Loan Party to perform any of its obligations under the Loan Documents or a Loan Party repudiates a Loan Document or evidences an intention to repudiate a Loan Document or a material provision of a Loan Document is or becomes or is claimed by a party andother than the Administrative Agent to be wholly or partly invalid, void, voidable or unenforceable in any eventmaterial respect;
(p) except as permitted by the terms hereof of any Collateral Document, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice any Collateral Document shall for any reason fail to create a valid security interest in any Collateral purported to be covered thereby with a fair market value in excess of $500,000, or (ii) any Lien with respect to Collateral with a fair market value in excess of $500,000 securing any Secured Obligation shall cease to be a perfected Lien; or
(q) any Collateral Document with respect to Collateral with a fair market value in excess of $500,000 shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document; then, and in every such failure shall have been given event (other than an event with respect to the Borrower described in Section 7.01(h) or (i)), and at any time thereafter during the continuance of such event, subject to Section 7.02, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitments shall terminate immediately and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any event with respect to the Borrower described in Section 7.01(h) or (i), the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Notwithstanding the foregoing, the Administrative Agent’s remedies with respect to clause (ii) above shall include, upon request of the Required Lenders, the right to the appointment of a receiver or receiver-manager for any properties and assets of the Loan Parties (to the extent such Loan Parties’ properties and assets secure the Obligations), and each Loan Party hereby consents to such right and such appointment and hereby waives any objection each Loan Party may have thereto or the right to have a bond or security posted by the Administrative Agent on behalf of the Lenders, in connection therewith. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, increase the rate of interest applicable to the Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Administrative Agent or the Australian Security Trustee under the Loan Documents or at law or equity, including all remedies provided under the UCC (or the foreign equivalent, as applicable). It is understood and agreed that if the Loans are accelerated or otherwise become due prior to the Maturity Date, including without limitation as a result of any Event of Default set forth in clause (h) or (i) of Section 7.01 (including the acceleration of claims by operation of law), the Applicable Premium and the Exit Fee will also automatically be due and payable and shall constitute part of the Obligations with respect to the Loans, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Xxxxxx’s lost profits as a result thereof. Any such Applicable Premium and Exit Fee payable shall be presumed to be the liquidated damages sustained by each Lender as the result of the early prepayment and each of the Loan Parties agrees that it is reasonable under the circumstances currently existing. Each of the Loan Parties expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the foregoing amounts in connection with any such acceleration, any rescission of such acceleration or the commencement of any proceeding under the Debtor Relief Laws. Each of the Loan Parties expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Applicable Premium and the Exit Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium and the Exit Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay such Applicable Premium and the Exit Fee; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Each of the Loan Parties expressly acknowledges that its agreement to pay such Applicable Premium and the Exit Fee to Lenders as herein described is a material inducement to Lenders to enter into this Agreement. Each Lender hereby agrees that, except with the written consent of the Required Lenders (and with prior written notice to the Administrative Agent), it will not take any enforcement action with respect to all or any Lender or, (ii) a Responsible Officer portion of the Borrower becomes aware Collateral, accelerate obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable law to credit bid at foreclosure sales, UCC sales or other similar Dispositions of all or any portion of the Collateral; provided that a Lender may be the purchaser or licensor of any or all of such failure;Collateral at any such sale or other Disposition (except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code).
Appears in 2 contracts
Samples: Subordinated Credit Agreement (F45 Training Holdings Inc.), Subordinated Credit Agreement (F45 Training Holdings Inc.)
Events of Default and Remedies. If any of the following events (shall occur, each such event shall be an “Events Event of Default”) shall occur and be continuing:
(a) the principal any representation or warranty of any Loan Party in this Agreement (or incorporated herein by reference) or in any reimbursement obligation of the other Related Documents or in any certificate, document, instrument, opinion or financial or other written statement made or delivered pursuant to or in connection with this Agreement or with any of the other Related Documents, shall prove to have been incorrect, incomplete or misleading in any material respect when made or deemed made;
(b) [reserved];
(c) the Borrower shall fail to pay any principal of or interest on any LC Disbursement shall not be paid Loan or the Bank Note or amounts drawn under any Letter of Credit when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, and in the case of, interest or other amounts, such failure shall continue unremedied for a period of three (3) Business Days;
(bd) any interest on any Loan or the Borrower shall fail to pay any fee or any other amount (other than an amount referred to in clause (ac) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidAgreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three (3) Business Days;
(ce) default in the due observance or performance by any applicable Loan Party of (i) any representation of Sections 5.1, 5.2, 5.3 (other than 5.3(a)(ii)(A) and 5.3(b)), 5.5, 5.6, 5.7, 5.8, 5.11, 5.14, 5.15, and 5.16 or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in (ii) any other Loan Document term, covenant or agreement set forth (or incorporated by reference) in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Related Document shall prove to have been incorrect and not otherwise covered in any material respect when made or deemed made or reaffirmed, as this Section 6.1 and the case may becontinuation of such default described in this clause (ii) for more than thirty (30) days after the occurrence of such default;
(df) the Borrower (i) this Agreement or any other Related Document or any material provision hereof or thereof shall fail cease to observe be valid and binding on any Loan Party party thereto, or perform (ii) any covenantLoan Party (or any Person acting on behalf of any Loan Party) shall contest this Agreement or any other Related Document or any material provision hereof or thereof, condition or agreement contained in Section 5.01(d)(i)any Loan Party, 5.02 or any Person acting on behalf of any Loan Party shall deny that it has any or further liability under this Agreement or any other Related Document to which it is a party;
(g) any Loan Party shall (i) have commenced against it any case, proceeding or other action of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, judicial management, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, judicial management, adjustment, winding-up (except a winding-up permitted by Section 5.6), liquidation, dissolution (except a dissolution or liquidation permitted by Section 5.6), composition or other relief with respect to it or its debts that (x) results in an order for such relief or in the Borrower’s existenceappointment of a receiver or similar official or (y) remains undismissed, undischarged or unbonded for a period of sixty (60) or 5.07 more days, (ii) not pay, will not be able to pay or admit in Article VIwriting its inability to pay, its debts generally as they become due or suspend payment of its obligations, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, conservator, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, or any other bankruptcy or similar law, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, marshalling of assets, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer in such proceeding or other pleading denying the material allegations of any such proceeding filed against it, (vi) fail to contest during a period of sixty (60) or more days any appointment or proceeding described in Section 6.1(h) hereof, or (vii) take any corporate or other action to authorize or consent to any of the actions set forth above in this subsection (g);
(eh) a custodian, receiver, trustee, conservator, judicial manager, liquidator or similar official shall be appointed for any Loan Party or any substantial part of the Property of any Loan Party, or a proceeding described in Section 6.1(g)(v) shall be instituted against any Loan Party and such appointment continues undischarged or any such proceeding continues undismissed or unstayed for a period of sixty (60) or more days;
(i) any Loan Party shall default in any payment of principal of or premium, if any, or interest on any Indebtedness with a principal amount in excess of $25,000,000 or any Loan Party shall fail to perform any agreement, term or observe any other term, covenant or agreement condition contained in this Agreement any agreement, mortgage or other instrument under which any such Indebtedness is created or secured, which results in, or permits the holder thereof to require, such Indebtedness becoming due and payable prior to its maturity, or a moratorium shall take effect by operation of law or have been declared or announced (other than those specified whether or not in Section 7.01(a)writing) by an Responsible Officer of any Loan Party or with respect to any Indebtedness;
(j) a final, Section 7.01(bnon-appealable judgment for the payment of money in excess of an aggregate of an amount equal to $25,000,000 (excluding any amounts covered by insurance for which the insurer has not denied or questioned coverage) shall be rendered against any Loan Party and such judgment or order shall continue unsatisfied and unstayed for a period of sixty (60) or Section 7.01(d)more days;
(k) or the occurrence of any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written “reportable event,” as defined in ERISA, which is determined to constitute grounds for termination by the PBGC of any Plan maintained by or on behalf of the Parent or any ERISA Affiliates thereof or for the appointment by the appropriate United States District Court of a trustee to administer such Plan and such reportable event is not corrected and such determination is not revoked within thirty (30) days after notice of such failure shall have thereof has been given to the plan administrator or the Parent or any ERISA Affiliates thereof, or the institution of proceedings by the PBGC to terminate any such Plan or to appoint a trustee to administer such Plan; or the appointment of a trustee by the appropriate United States District Court to administer any such Plan; or the Parent or any ERISA Affiliates thereof as employer under a Multiemployer Plan shall have made a complete or partial withdrawal from such Multiemployer Plan, in each case, to the extent that any such event would reasonably be expected to result in liability to the Parent or an ERISA Affiliate in excess of $25,000,000 or (ii) any circumstance in respect of any Foreign Pension Plan that, in the reasonable opinion of the Required Lenders, would reasonably be expected to result in a Material Adverse Effect;
(l) there occurs under any Swap Agreement an Early Termination Date (as defined in such Swap Agreement) resulting from (i) any event of default under such Swap Agreement as to which the Borrower is the Defaulting Party (as defined in such Swap Agreement) or (ii) any Termination Event (as so defined) under such Swap Agreement as to which the Borrower is an Affected Party (as so defined) and, in either event, the amount owed by the Borrower as a result thereof and not paid (or reserved against in accordance with GAAP to the extent such amount is being contested in good faith or is otherwise unable to be paid pursuant to applicable Law) when due (after giving effect to any applicable grace period) is greater than $25,000,000;
(m) dissolution or termination of the existence of any Loan Party; or
(n) the Parent shall fail to own, directly or indirectly, 75% of the outstanding Capital Stock of each other Loan Party. then, and in every such event (other than an event with respect to any Loan Party described in clause (g) or (h) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may (and upon written request of the Required Lenders, shall) by notice to the Parent, take either or both of the following actions, at the same or different times: (i) declare the commitment of the Lenders to make Loans and any Lender orobligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitment and obligation shall be terminated: (ii) a Responsible Officer declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower becomes aware accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of such failure;any kind, all of which are hereby waived by the Parent and the Borrower; and in case of any event described in clause (g) or (h) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Parent and the Borrower; (iii) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then outstanding amount thereof); and (iv) exercise all rights and remedies available to it under the Related Documents or at Law.
Appears in 2 contracts
Samples: Credit Agreement (UL Solutions Inc.), Credit Agreement (UL Inc.)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuingoccur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidDocument, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation representation, warranty or warranty certification made or, for purposes of Article III, or deemed made by or on behalf of the Borrower herein, at the direction or any of the Borrower its Subsidiaries in or by in connection with any Loan Party in any other Loan Document or any amendment or modification thereof or waiver thereunder, or in any documentreport, certificate or certificate, financial statement delivered or other document furnished pursuant to or in connection with this Agreement any Loan Document or any other Loan Document amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may bemade;
(d) the Borrower shall: (i) fail to observe or perform any covenant, condition or agreement contained in Section 5.01(f) and such failure shall continue unremedied for a period of 5 Business Days after notice from the Administrative Agent to the Borrower; (ii) fail to maintain the insurance required by Section 5.07 with respect to any material portion of the Collateral; (iii) fail to observe or perform any covenant, condition or agreement contained in Sections 5.02, 5.04 (with respect to the existence of the Borrower), 5.09 or 5.11 or in Article VI, or (iv) fail to observe or perform any covenant, condition or agreement contained in Section 4.04 or Article V of the Security Agreement;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement Document (other than those specified in Section 7.01(aclause (a), Section 7.01(b(b) or Section 7.01(d(d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice may be given by the Administrative Agent at any time it has knowledge of any such failure and will be given by the Administrative Agent at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, within 5 days of the date when the same shall become due and payable;
(g) any event or condition occurs that: (i) results in any Material Indebtedness becoming due prior to its scheduled maturity or (ii) enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to:
(A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness nor (B) any event or condition that enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity if the holders of such Material Indebtedness have waived such event or condition and their right to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other Loan Document to which it is relief in respect of the Borrower, any Subsidiary or its debts, or of a party substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any eventsuch case, either (A) there shall be a period of 60 days during which such failure proceeding or petition shall remain unremedied for 30 calendar days after not be dismissed, vacated or stayed pending appeal or (B) an order or decree approving or ordering any of the earlier of foregoing shall be entered;
(i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender orSubsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a Responsible Officer timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount (excluding amounts covered by insurance from financially sound insurance companies that have acknowledged liability in respect thereof) in excess of $10,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and either (i) there shall be a period of 45 consecutive days during which the same shall not be discharged, vacated or stayed pending appeal or (ii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower becomes aware or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding (i) $5,000,000 in any year or (ii) $7,500,000 for all periods;
(m) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any portion of the Collateral with an aggregate value in excess of $5,000,000, with the priority required by the applicable Security Document, except (i) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or (ii) as a result of the Collateral Agent's failure to maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Pledge Agreement; or
(n) a Change in Control shall occur; or
(o) any Security Document which encumbers property with a value in excess of $5,000,000 shall for any reason cease to be in full force and effect and valid, binding and enforceable in accordance with its terms after its date of execution, or the Borrower or any Subsidiary shall so state in writing; or then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such failure;event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without notice of intent to accelerate, notice of acceleration, presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without notice of intent to accelerate, notice of acceleration, presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. In addition to the other rights and remedies that the Lenders may have upon the occurrence of an Event of Default, the Required Lenders may direct the Administrative Agent to exercise the rights and remedies available to the Collateral Agent or the Administrative Agent under the Security Documents.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) A. The Companies or the Borrowers shall default in the payment of any installment of the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid the Notes when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration or otherwise, provided such default shall continue for a period of ten (10) calendar days; provided, that the ten (10) day grace period shall not apply in the Event of Default of payment upon the stated maturity of the Notes;
(b) any B. The Companies or the Borrowers shall default in the payment of interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidthe Notes, when and as the same shall become due and payable, and whether at the due 17 18 date thereof or at a date fixed for prepayment or by acceleration or otherwise; provided that such failure default shall continue unremedied for a period of five Business Daysten (10) calendar days;
(c) C. The Companies or the Borrowers shall default with regard to any payment of principal or interest on or the performance or observance of any covenant, condition or agreement of any other instrument of indebtedness executed by the Companies or the Borrowers;
D. Any representation or warranty made orby the Companies or the Borrowers in this Agreement or in connection with the loans hereunder, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any documentreport, certificate or certificate, financial statement delivered or other agreement, document or instrument furnished in connection with this Agreement or any other Loan Document the loans hereunder shall prove to have been incorrect be false or misleading in any material respect when made or deemed made or reaffirmed, as the case may berespect;
(d) the Borrower E. The Companies shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 5 of the Agreement; provided that such failure shall continue unremedied for a period of twenty (with respect to the Borrower’s existence20) or 5.07 or in Article VIdays after written notice thereof;
(e) any Loan Party F. The Companies shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement contained in to be observed or performed pursuant to the terms of this Agreement (other than those specified excluding Section 5); provided that such default shall continue unremedied for thirty (30) days after written notice thereof is sent by Bank One to the Companies, including a description thereof;
G. The Companies shall fail to observe or perform any covenant, condition or agreement in the Notes;
H. An event of default under any guaranty or similar agreement (including the Security Agreements referred to in Section 7.01(a), Section 7.01(b2.8) or Section 7.01(d)executed in connection with the loans hereunder shall occur and be continuing;
I. Final judgment for the payment of money in excess of One Million Five Hundred Thousand Dollars ($1,500,000) shall be rendered against the Companies or any other Loan Document to which it is a party and, in any event, such failure Subsidiary and the same shall remain unremedied undischarged for 30 calendar a period of thirty (30) consecutive days after during which the earlier of execution shall not be effectively stayed;
J. The Companies or any Subsidiary shall (i) written notice of such failure shall have been given apply for or consent to the Borrower by the Administrative Agent appointment of a receiver, trustee or liquidator for them or for any Lender orof their property, (ii) admit in writing their inability to pay their debts as they mature, (iii) make a Responsible Officer general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against them in any proceeding under any such law or if corporate 18 19 action shall be taken by the Companies or any Subsidiary for the purpose of effecting any of the Borrower foregoing;
K. An order, judgment or decree shall be entered without the application, approval or consent of the Companies or any Subsidiary by any court of competent jurisdiction, approving a petition seeking reorganization of the Companies or any Subsidiary or appointing a receiver, trustee or liquidator of the Companies or any Subsidiary or of all or a substantial part of the assets thereof, and such order, judgment or decree shall continue unstayed and in effect for any period of forty-five (45) days; then upon the occurrence of any such Event of Default specified in subdivisions A, B, C, D, E, F, G, H, I and K of this Section, Bank One shall have the option to cease disbursements under the Revolving Credit Notes and/or to terminate its commitment to lend and to declare all amounts due under the Notes to be immediately due and payable both as to principal and interest. Automatically upon the occurrence of any of the events specified in subdivision J of this Section, Bank One's commitment to lend shall terminate and all amounts due under the Notes shall become immediately due and payable. The Notes shall then become immediately due and payable without presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived, anything contained herein or in the Notes to the contrary notwithstanding. It is understood that the remedies of Bank One hereunder shall be cumulative in nature rather than exclusive and that the failure of Bank One to exercise its rights upon an Event of Default by the Companies hereunder shall not be deemed to be a waiver by Bank One of that Event of Default or any of its rights hereunder. BANK ONE SHALL NOT BE REQUIRED, AS A CONDITION TO THE LIABILITY OF ANY OF THE COMPANIES, TO RESORT TO, ENFORCE OR EXHAUST ANY OF ITS REMEDIES AGAINST ANY OTHER OF THE COMPANIES OR TO RESORT TO, ENFORCE OR EXHAUST ANY OF ITS REMEDIES AGAINST ANY PROPERTY WHICH MAY AT ANY TIME BE GIVEN OR HELD AS SECURITY FOR THE NOTES OR UPON WHICH BANK ONE OBTAINS A LIEN FOR REPAYMENT OF THE NOTES. When any indebtedness of the Companies to Bank One becomes aware due, by acceleration or otherwise, Bank One shall have the right, without notice to the Companies, any party claiming under the Companies, or any other party, such notice being hereby expressly waived, and without regard to the adequacy or value of the collateral or the solvency or insolvency of the Companies, to the appointment of a receiver by a court of competent jurisdiction chosen solely by Bank One, upon application at any time, whether prior to or after a judgment has been obtained against Companies, to take possession of the business of the Companies together with its books and records, to maintain or to liquidate said business, to collect the proceeds of the collateral and apply the net proceeds to any indebtedness of the Companies to Bank One. The Companies consents to jurisdiction and venue for the appointment of such failure;receiver by such court and agrees that any receiver so appointed may take possession of the business of the Companies, together with the collateral in any other jurisdiction in which the collateral may be located.
Appears in 1 contract
Samples: Loan Agreement (Symix Systems Inc)
Events of Default and Remedies. Section 8.01. If any of the following events (“herein called "Events of Default”") shall occur and be continuing:happen,
(a) if the principal of Company fails to make any Loan payment required by Section 4.01 (a) or any reimbursement obligation in respect of any LC Disbursement shall not be paid (c) hereof when and as the same shall become due and payable, whether at except, in the case of any payment under subsection (a) of Section 4.01 hereof corresponding to interest on the Bonds, the Company shall not be in default if such payment is made within three (3) days following the due date thereof or at a date fixed for prepayment thereof or otherwise;thereof; or
(b) any interest on any Loan or any fee or if the Company fails to pay any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, payment required hereby and such failure shall continue unremedied continues for a period of five Business Days;30 days after the Authority or the Trustee gives notice that such other payment is due and unpaid; or
(c) if the Company fails to perform any representation of its other covenants or warranty made orconditions or fails to perform any of its obligations hereunder and such failure continues for 30 days after the Authority or the Trustee gives the Company written notice thereof; provided, for purposes of Article IIIhowever, deemed made that if such performance requires work to be done, actions to be taken, or conditions to be remedied, which by their nature cannot reasonably be done, taken or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmedremedied, as the case may be;, within such 30 day period, no Event of Default shall be deemed to have occurred or to exist if, and so long as, the Company shall commence such performance within such 30 day period and shall diligently and continuously prosecute the same to completion; or
(d) if the Borrower shall fail to observe Company commits any act of bankruptcy under Federal or perform any covenant, condition state bankruptcy laws or agreement contained in Section 5.01(d)(i), 5.02 (with respect laws providing for reorganization or relief for debtors or files or has filed against it a petition of bankruptcy or for arrangement or for reorganization pursuant to the Borrower’s existence) Federal Bankruptcy Code or 5.07 other similar laws, Federal or state, or if, by the decree of a court of competent jurisdiction, it is adjudicated bankrupt or declared insolvent, or makes an assignment for the benefit of creditors, or admits in Article VI;writing its inability to pay its debts generally when or as they become due, or consents to the appointment of a trustee, receiver or liquidation of all or any part of the Company or any of its facilities or the Project Fa-
(e) the occurrence of an Event of Default under the Indenture. then and at any Loan Party time thereafter while such Event of Default is continuing, the Authority may in addition to its other remedies at law or equity or provided for in this Sublease, with the consent of the Bank by notice to the Company specifying the Event of Default, terminate this Sublease. Anything in this Sublease to the contrary notwithstanding, if, the Trustee under the Indenture shall, pursuant to Section 10.02 thereof, declare the principal of the then Outstanding Bonds immediately due and payable then there shall fail become immediately due and payable hereunder as then current damages of the Authority under this Sublease an amount equal to perform all amounts then due and payable by the Authority under said Section 10.02 of the Indenture. Until said amount is paid by the Company at the time or observe times and in the manner required to permit the Authority to meet its obligations pursuant to the Indenture, the Authority shall continue to have all of the rights, powers and remedies herein set forth, and, for such time as may be necessary to enable the Authority to satisfy in full its obligations under the Indenture, the term of this Sublease shall be extended as a tenancy at the will of the Authority, and the Company's obligations hereunder shall continue in full force and effect.
Section 8.02. If this Sublease is terminated under Section 8.01,
(a) such termination shall not relieve the Company of previously accrued obligations under the Sublease; and
(b) the Company shall peaceably surrender the Premises failing which, the Authority shall have the right to enter upon and repossess the Premises by force, ejectment or otherwise; and
(c) the Authority may relet any or all of the Premises on such terms as it elects, but the Authority shall not be liable for any failure to relet or to collect any rent due upon reletting; and
(d) thereafter, as liquidated current damages for its default, the Company shall pay to the Authority, on the dates on which payments required 33 hereunder or under the Indenture would have been payable, amounts equal to such installments less the net proceeds of any reletting effected under (c) above. Additionally, it is understood that in determining "net proceeds" the Authority shall deduct from all sums collected amounts equal to all charges, expenses or commissions reasonably incurred in collecting such sums and/or operating and administering the Project Facilities.
Section 8.03. In case of any proceeding of the Authority:
(1) to foreclose or terminate the estate or interest of the Company, based upon a default hereunder (if the Authority shall elect so to proceed); or
(2) wherein appointment of a receiver may be permissible, the Authority, as a matter of right and immediately upon institution of each proceeding, upon written notice to the Company, shall be entitled to appointment of a receiver of the Premises with such powers as the court making such appointment can confer; subject, however, to limitations and restrictions of the Act.
Section 8.04. As part of the consideration for the Sublease, the Company hereby waives any applicable exemption laws now or hereafter in force. No failure by either party to insist upon strict performance hereof or to exercise any remedy upon the occurrence of an Event of Default shall constitute a waiver of such default, or a waiver or modification of any provision hereof. Upon the occurrence of an Event of Default, the Authority may exercise any one or more of the remedies available to it separately or concurrently and as often as required to enforce the Company's obligations. In addition to the other remedies provided herein, the Authority shall be entitled to the restraint by injunction of the violation, or attempted or threatened violation by the Company of any of the covenants, conditions or provisions hereof, or to a decree compelling specific performance of any of such covenants, conditions or provisions.
Section 8.05. With respect to any amounts payable by the Company to the Authority hereunder, the Authority shall have, in addition to any other termrights and remedies, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower same rights and remedies as are provided by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;law and in
Appears in 1 contract
Samples: Sublease and Security Agreement (Sterigenics International)
Events of Default and Remedies. If any (a) Each of the following events (“Events acts or occurrences shall constitute an "Event of Default”) shall occur and be continuing" hereunder:
(ai) default in the principal payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment or Completion Costs Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Loan Basic Rent and the continuance of such default for 5 Business Days thereafter; or any reimbursement obligation the default in respect the payment when due of any LC Disbursement shall not be paid when and as Supplemental Rent, the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) amount of any interest on any Loan or any fee Indemnified Risk or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party due hereunder or under this Agreement or any other Loan Operative Document shall not be paid, when and as the same shall become due and payable, and continuance of such failure shall continue unremedied default for a period of five Business Days;30 days thereafter; or
(cii) any representation or warranty made or, for purposes of Article III, or deemed made by or on behalf of the Borrower Lessee herein, at the direction of the Borrower or by any Loan Party the Lessee or the Guarantor in any other Loan Operative Document or otherwise in any document, certificate or financial statement delivered writing in connection with or pursuant to this Agreement Lease or any other Loan Document Operative Document, shall prove to have been incorrect be false or misleading in any material respect when on the date made or deemed made or reaffirmed, as made; or
(iii) an Event of Default under the case may beInvestment Agreement;
(div) the Borrower The Lessee shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in Sections 12 and 26 of this Agreement Lease; or
(v) The Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those specified in Section 7.01(acovered by subsections (i) or (iv) above), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, and such failure shall remain unremedied for not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 calendar days days, with respect to any other provision hereof, after the earlier to occur of (iA) written notice of such failure shall have thereof has been given to the Borrower Lessee and the Guarantor by the Administrative Agent Lessor at the request of the Majority Funding Parties or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term "abandon" shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Upon the occurrence and during the continuance of any Event of Default, as determined by the Lessor, the Lessor (acting at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any Lender orother equitable or legal remedy, all as the Lessor shall deem necessary or advisable; and/or
(ii) by notice to the Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all other remedies available under applicable law or at equity.
(c) After the occurrence and during the continuance of a Cancellation Event or Termination Event, in the event the Lessor elects not to terminate this Lease and the Lessee has not exercised its option under Section 15(c), this Lease shall continue in effect and the Lessor may enforce all of the Lessor's rights and remedies under this Lease, including, without limitation, the right to recover the Basic Rent and Supplemental Rent, and any Completion Costs and all other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or any other Operative Documents. For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) a Responsible Officer efforts by the Lessor to relet the Facility or any part thereof, including, without limitation, termination of any sublease of the Borrower becomes aware Facility and removal of any tenant from the Site, (iii) or the appointment of a receiver upon the initiative of the Lessor to protect the Lessor's interest under this Lease.
(d) If (i) on the Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of the Purchase Price, or (ii) on the Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such repossession or the Facility or entry onto the Site.
(e) Should the Lessor elect to repossess the Facility or any part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any part thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) At any time after the repossession of the Facility or any part thereof, whether or not this Lease shall have been cancelled or terminated, the Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of such failure;reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any failure to collect any rent due upon any such reletting.
(g) The remedies herein provided in case of an Event of Default are in addition to, and without prejudice to, the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other remedy hereunder or existing at law, in equity or in bankruptcy.
(h) No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the extent permitted by applicable law, the Lessee waives any right it may have at any time to require the Lessor to mitigate the Lessor's damages upon the occurrence of a Default or Event of Default by taking any action or exercising any remedy that may be available to the Lessor, the exercise of remedies hereunder being at the discretion of the Lessor.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become such payment is due and payable, (whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
) or Letters of Credit shall not have been cash collateralized in accordance with Section 3.01(k), or (bii) any interest on any Loan or Obligation, any fee or any other amount (other than an amount referred to in clause (ai) of this ArticleSection 9.01(a)) payable by a Loan Party under this Agreement hereunder or any other Loan Document shall not be paidpaid within five (5) Business Days following the date on which the payment of interest, when and as the same shall become due and payable, and fee or such failure shall continue unremedied for a period of five Business Days;other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower Parent or by any Loan Party Subsidiary herein or in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect untrue in any material respect when made (or, to the extent qualified by materiality or reference to Material Adverse Effect, in all respects) as of the date of issuance or making or deemed made or reaffirmed, as the case may be;making thereof; or
(dc) the Borrower any Obligor shall fail to (i) perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i)7.02, 5.02 Section 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII, or (ii) fail to give any notice required by Section 7.01(d)(ii); or
(d) (i) any Obligor shall fail to give any notice required by Section 7.01 (other than Section 7.01(d)(ii)) and, in Article VI;any event, such failure shall remain unremedied for five (5) days after the earlier to occur of (A) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (B) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure, or (ii) any Obligor shall fail to perform or observe any covenant or any other agreement contained in Section 7.03, Section 7.04, Section 7.05 (other than with respect to the existence of any Obligor), Section 7.07, Section 7.08 and Section 7.14, and, in any event, such failure shall remain unremedied for fifteen (15) days after the earlier to occur of (I) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (II) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) Parent or any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender or, Lender) and (ii) a Responsible Principal Financial Officer of the Borrower becomes any Obligor otherwise becoming aware of such failure; or
(f) there is (i) an event of default with respect to any Material Indebtedness, and such default (A) occurs at the final maturity of the obligations thereunder, or (B) results in a right by the holder of such Material Indebtedness, irrespective of whether exercised, to accelerate the maturity of such Obligor’s or its Restricted Subsidiary’s obligations thereunder, or (ii) an event of default under (A) the ABL Credit Agreement or (B) the Exit Senior Notes Indenture; provided that an event of default under any financial maintenance covenant included in the ABL Credit Agreement shall not constitute an Event of Default under this Section 9.01(f) unless (x) the ABL Credit Agreement has become due prior to its scheduled maturity or (y) the ABL Collateral Agent or the ABL Secured Parties have commenced enforcement actions with respect to the ABL Priority Collateral; or
(g) [reserved]
(h) [reserved]
(i) an Insolvency Proceeding is commenced by an Obligor or any of its Material Subsidiaries; or
(j) an Insolvency Proceeding is commenced against an Obligor or any of its Material Subsidiaries and any of the following events occur: (a) such Obligor or such Material Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) calendar days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, such Obligor or its Material Subsidiary, or (e) an order for relief shall have been issued or entered therein; or
(k) a judgment or order for monetary damages shall be entered against any Obligor or any Restricted Subsidiary, which with other outstanding judgments and orders for monetary damages entered against such Obligors and such Restricted Subsidiaries equals or exceeds $65,000,000 in the aggregate (to the extent not covered (other than to the extent of customary deductibles) by insurance as to which the respective insurer has not denied coverage), and (i) within 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, satisfied, vacated, or bonded pending appeal, or a stay of enforcement thereof is not in effect, or (ii) any enforcement proceeding shall have been commenced (and not stayed) upon any such judgment; provided that if such judgment or order provides for any Obligor or any Restricted Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (k) if such Obligor or such Restricted Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches to any assets of an Obligor or Restricted Subsidiary during the period over which such payments are made and no enforcement proceeding is commenced by any creditor for payment of such judgment or order); or
(l) at any time prior to Payment in Full, any Loan Document (other than one or more Collateral Documents intended to grant or perfect a Lien in Collateral with a net book value that does not exceed $5,000,000 in the aggregate under all such Collateral Documents) shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and/or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(m) any Collateral Document shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and each of the Lenders), at any time after its execution and delivery and for any reason, fail to create a valid and perfected (or analogous concept to the extent perfection does not apply in the relevant jurisdiction) security interest with the priority set forth in the Intercreditor Agreement, or other Lien in any material portion of the Collateral purported to be covered thereby, except to the extent permitted under this Agreement or with the consent of the Administrative Agent and each Lender, provided that it shall not be an Event of Default if the aggregate net book value of the Collateral with respect to which the Collateral Documents fail to create a valid and perfected security interest or other Lien does not exceed $5,000,000;
(n) an ERISA Event has occurred that would reasonably be expected (individually or collectively) to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on Parent, any of its Subsidiaries, any Borrower or any ERISA Affiliate which (individually or collectively) would reasonably be expected to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000; or Parent, any of its Subsidiaries, any Borrower or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC, or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan, or the PBGC shall have notified Parent or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there would result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of Parent, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) Parent, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000;
(o) the provisions of the Intercreditor Agreement shall for any reason (other than termination in accordance with its terms) be revoked or invalidated, or otherwise cease to be in full force and effect and binding under the laws of any applicable Specified Jurisdiction, or Parent or any Subsidiary of Parent shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder;
(p) the obligation of any Guarantor under any Guaranty Agreement is limited in any material respect or terminated by operation of law or by such Guarantor (other than in accordance with the terms of this Agreement or the respective Guaranty Agreement) or if any Guarantor repudiates or revokes or purposes to repudiate or revoke such guaranty;
(q) a Change of Control shall occur, whether directly or indirectly; then, and in every such event (other than an event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j)), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Obligations then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the Obligations so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers;
(iii) require the Borrowers deposit in the LC Collateral Account an additional amount in cash equal to (a) 103% of the Total LC Exposure in respect of Letters of Credit denominated in Dollars plus (b) 105% of the Dollar Equivalent Total LC Exposure in respect of Letters of Credit denominated in Alternative Currencies in accordance with Section 3.01(k). And in case of any event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j), the Commitments shall automatically terminate and all Obligations then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors. In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may, subject to the Intercreditor Agreement, exercise all rights and remedies of a secured party under the New York Uniform Commercial Code or any other applicable law. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Obligor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived by the Borrowers and Parent on behalf of themselves and their respective Subsidiaries), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Obligor of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Obligor, which right or equity is hereby waived and released by the Borrowers and Parent on behalf of themselves and their Subsidiaries. The Borrowers and Parent further agree on behalf of themselves and their Subsidiaries, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the premises of the Borrowers, another Obligor or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this section, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations of the Obligors under the Loan Documents, in such order as the Administrative Agent may elect, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if any, to any Obligor. To the extent permitted by applicable law, the Borrowers and Parent, on behalf of themselves and their Subsidiaries, waive all claims, damages and demands it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
Appears in 1 contract
Samples: Lc Credit Agreement (Weatherford International PLC)
Events of Default and Remedies. If any of the following events (each an “Events Event of Default”) or a Lender Amortization Event shall occur and be continuingoccur:
(a) the principal occurrence of any Loan Bankruptcy Event with respect to the Borrower, the Seller or the Servicer; or
(b) the Borrower or the Seller shall fail to make any reimbursement obligation payment or deposit when due pursuant to any Transaction Document and such event shall remain unremedied for two (2) Business Days; or
(c) the Facility Amount shall at any time be greater than the Capital Limit and such event shall remain unremedied for two (2) Business Days; or
(d) the average of the Delinquency Rates in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;three consecutive Remittance Periods exceeds 5.00%; or
(be) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;Cumulative Net Loss Rate exceeds the Weighted Average Expected Net Loss Rate; or
(cf) Seller shall fail to maintain the Minimum Partner’s Capital as of the last day of any calendar quarter; or
(g) Seller’s Leverage Ratio, in respect of any calendar quarter, shall exceed 8.5 to 1:0; or
(h) any representation or warranty made or, for purposes of Article III, or deemed to be made by the Borrower, the Seller or on behalf the Servicer (or any of the Borrower herein, at the direction of the Borrower their respective officers) under or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement (or any remittance report or other information or report delivered pursuant hereto) or any other Loan Transaction Document (except solely with respect to Receivables that have been resold to the Seller in accordance with a LEAF Purchase Event) shall prove to have been be false or incorrect in any material respect when made and shall remain false or deemed made incorrect for a period of fifteen (15) days after the earlier to occur of (a) the discovery of such failure by the Borrower, the Seller or reaffirmedthe Servicer or (b) notice of such failure given to any such Person by the Agent, as the case may be;Agent’s Bank or the Lender; or
(di) the Borrower shall fail to observe Borrower, the Seller or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Servicer shall fail to perform or observe any other term, covenant or agreement contained in this Agreement hereunder or under any other Transaction Document (other than those specified as described in this Section 7.01(a)7.01) in any respect and such failure remains unremedied for fifteen (15) days after the earlier to occur of (a) the discovery of such failure by the Borrower, Section 7.01(bthe Seller or the Servicer or (b) notice of such failure given to any such Person by the Agent, the Agent’s Bank or Section 7.01(d)the Lender; or
(i) or the Agent (on behalf of the Lender) shall at any other Loan Document time fail to which it is have a party valid, perfected, first priority security interest in any of the Borrower’s right, title and interest in the Pledged Assets and, in any event, such failure event shall remain unremedied for 30 calendar five (5) days or (ii) the Borrower shall, for any reason, cease to have a perfected (with respect to any accounts or chattel paper) ownership interest in any Receivable and the Collections, Related Security and the Other Conveyed Property with respect thereto and such event shall remain unremedied for three (3) Business Days after (a) discovery of such failure by the earlier of Borrower or (ib) written notice of such failure shall have been given to the Borrower by the Administrative Agent Agent, the Agent’s Bank or the Lender (except to the extent that UCC financing statements are not required to have been filed against the related Obligor for any Equipment related to any Contract that had an original equipment cost at origination of less than $50,000, or if such Contract provides for a “nominal value” purchase option, of less than $25,000); or
(k) LEAF Financial (or one of its leasing Affiliates) shall fail to pay any principal of or premium or interest on any Debt in a principal amount in excess of $200,000, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), which payment shall remain unpaid for the lesser of (i) a period of ten (10) days or (ii) any applicable grace period applicable to such Debt; or any Lender other default under any agreement or instrument relating to any Debt with a principal amount of $200,000 or more of LEAF Financial or any of its leasing Affiliates) or any other event, shall occur if the effect of such default or event, together with the required passage of time or giving of notice or both, is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt with a principal amount of $200,000 or more shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(l) the occurrence of a payment default under any financing transaction with a principal amount of $200,000 or more by LEAF Financial or any leasing Affiliate, involving the direct or indirect sale or other conveyance of Receivables or other assets related thereto to a Person that shall privately or publicly sell securities, notes or certificates backed by such Receivables or assets; or
(m) the Borrower, the Servicer or the Seller shall have suffered any material adverse change to its financial condition or operations which would affect the collectibility of the Pledged Receivables or the Borrower’s, the Servicer’s or the Seller’s ability to conduct its business or fulfill its obligations hereunder or under any other Transaction Document; or
(n) the occurrence of a Change of Control; or
(o) the auditor’s opinion accompanying the audited annual financial statements of LEAF Financial or the Seller and its consolidated subsidiaries (including the Borrower) is qualified in any material manner; or
(i) any Qualifying Interest Rate Hedge shall cease to be in full force and effect and shall not have been replaced by another Qualifying Interest Rate Hedge, (ii) the occurrence of any default by the Borrower in the observance or performance of any of the terms or provisions of any Qualifying Interest Rate Hedge, (iii) any interest rate swap agreement or interest rate cap agreement represented by the Borrower to be a Responsible Officer Qualifying Interest Rate Hedge shall fail to be, or cease to be, a Qualifying Interest Rate Hedge (subject to a 45 day grace period to obtain a replacement Qualifying Interest Rate Hedge solely if such interest rate swap agreement or interest rate cap agreement ceases to be a Qualifying Interest Rate Hedge solely because of a ratings downgrade of the applicable hedge counterparty) or (iv) the Borrower shall fail to comply with any hedging requirement hereunder and, in any such case, such event shall remain unremedied for two (2) Business Days; or
(q) any Transaction Document, or any material provision thereof, shall not be in full force and effect and enforceable in accordance with its terms, or U.S. Bank, LEAF, the Seller or the Borrower shall so assert in writing; or
(r) the Originator’s, the Seller’s or the Borrower’s business activities relating to the origination, financing and servicing of the Receivables, the Related Security and the Other Conveyed Property or other similar assets are terminated for any reason, including any termination thereof by a regulatory, tax or accounting body; or
(s) any employee fidelity/dishonesty insurance policy required to be maintained by the Servicer shall not be in full force and effect and enforceable in accordance with its terms, or the insurer party to such insurance policy shall so assert in writing and any event described in this clause (s) remains unremedied for five (5) days after the occurrence thereof; or
(t) The Pension Benefit Guaranty Corporation or the Internal Revenue Service shall have filed notice of one or more liens against either the Seller or the Borrower (unless such lien does not purport to cover any of the Pledged Assets) and such notice shall have remained in effect for more than five (5) Business Days; then the Agent may, by notice to the Borrower (with a copy to the other parties hereto), declare the Early Amortization Commencement Date to have occurred; provided, that, in the case of any event described in Section 7.01(a) above, the Early Amortization Commencement Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon consent of the Lender, the Agent may waive any Event of Default or any Lender Amortization Event. Upon any such waiver of an Event of Default or any Lender Amortization Event, such default shall cease to exist, and shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall be effective unless it shall be in writing and signed by the Agent on the Lender’s behalf, and no such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. The Agent shall promptly send a copy of each waiver to all of the parties hereto. Upon any such declaration or automatic occurrence or the occurrence of the Early Amortization Commencement Date, (i) the Borrower shall cease purchasing Receivables from the Seller under the Purchase and Contribution Agreement, (ii) the Lender may cease issuing commercial paper notes to fund or maintain the Loans hereunder, (iii) the Liquidity/Credit Enhancement Facility may be drawn upon by the Lender from time to time thereafter in order to retire the maturing commercial paper notes issued to fund or maintain the Loans hereunder (and the Loans hereunder, whether maintained by the amounts so drawn under the Liquidity/Credit Enhancement Facility or otherwise, shall bear interest at the Default Funding Rate), (iv) at the option of the Lender in its sole discretion, the Lender may declare the Loans made to the Borrower hereunder and all Yield and all Fees accrued on such Loans and any other Obligations to be immediately due and payable by written notice to the Borrower that an Event of Default has occurred and is continuing (and the Borrower shall pay such Loans and all such amounts and Obligations immediately), provided, that this clause (iv) shall not apply with respect to an event described in clause (i) of the definition of Early Amortization Event until the occurrence of a Lender Amortization Event, (v) at the option of the Lender in its sole discretion, the Lender may pursuant to Section 6.05(c) instruct the Servicer to take all additional steps, if any, as are necessary or desirable, in the determination of the Agent, to create and/or maintain perfection of the security interest in any Equipment related to each Pledged Receivable (and the proceeds of such Equipment) on behalf of the Borrower becomes aware and to create and/or maintain perfection of the security interest in the security interest of the Borrower in any Equipment related to each Pledged Receivable and (vi) at the option of the Lender in its sole discretion, the Agent, on behalf of the Lender, may direct the Obligors to make all payments under the Pledged Receivables directly to the Backup Servicer or a successor Servicer, the Agent, the Lender or any lockbox or account established by any of such failure;parties. In addition, upon any such declaration or upon any such automatic occurrence, the Agent and the Lender shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other applicable laws, which rights shall be cumulative. If any Event of Default shall have occurred, the CP Rate shall be increased to the Default Funding Rate, effective as of the date of the occurrence of such Event of Default.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Events of Default and Remedies. SECTION 2.01. If any one or more of the following events (each, an “Events Event of Default”) shall occur and be continuinghappen, that is to say:
(a) if (i) default shall be made in the payment of any interest due under the Note, or in the payment of any installment of principal due under the Note, in either such case, when and as the same shall become due and payable, or (ii) default shall be made in any other payment of the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid the Note, when and as the same shall become due and payable, whether at the due date thereof maturity or at a date fixed for by acceleration or as part of any prepayment thereof or otherwise;, in each case, as in the Note and this Mortgage provided or default in the payment of any other Indebtedness due to Mortgagee under this Mortgage, or (iii) default shall be made in the payment of any tax required by Section 1.07 to be paid and said default shall have continued for a period of twenty (20) days; or
(b) Intentionally Omitted; or
(c) if any representation of Mortgagor made herein or as part of Mortgagor’s application for the Loan shall have been materially false when made; or
(d) if Mortgagor fails to perform or cause to be performed any other obligation or observe any other condition, covenant, term, agreement or provision required to be performed or observed by Mortgagor under the Note, this Mortgage or any of the other Loan Documents; provided, however, that if such failure by its nature can be cured, then so long as the continued operation and safety of the Premises, and the priority, validity and enforceability of the liens created by the Mortgage or any of the other Loan Documents and the value of the Premises are not impaired, threatened or jeopardized, then the Mortgagor shall have a period (“Cure Period”) of thirty (30) days after Mortgagor obtains actual knowledge of such failure or receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period; provided, that if such failure cannot, despite Mortgagor’s diligent efforts, be cured in such thirty (30) day period, then so long as Mortgagor continues to diligently prosecute such cure, the Cure Period shall be extended for an additional period not to exceed sixty (60) additional days from the end of the original thirty (30) day Cure Period; or
(e) if by the order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property, or any part thereof, or of the Mortgagor shall be appointed and such order shall not be discharged or dismissed within sixty (60) days after such appointment; or
(f) if the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Mortgagor or of any substantial part of its property, or if the Mortgagor shall make any general assignment for the benefit of creditors, or if the Mortgagor shall fail generally to pay its debts as such debts become due, or if the Mortgagor shall take any action in furtherance of any of the foregoing; or
(g) if any of the creditors of the Mortgagor shall commence against the Mortgagor an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect and if such case shall not be discharged or dismissed within sixty (60) days after the date on which such case was commenced, or
(h) if final judgment for the payment of money in excess of the sum of $10,000 in the aggregate which is not covered by a valid and subsisting policy of insurance shall be rendered against the Mortgagor and the Mortgagor shall not discharge the same or cause it to be discharged within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; or
(i) if any of the events enumerated in clauses (e) through (h) of this Section 2.01 shall happen to the Guarantor, if any, or any of its property; or
(j) if any Guarantor defaults, after the expiration of applicable notice and cure periods, under or attempts to withdraw, cancel or disclaim liability under any guaranty issued to Mortgagee; or
(k) if the Mortgagor sells, transfers, assigns, conveys or encumbers the Premises or any part thereof or any interest on therein without the prior written consent of the Mortgagee; or
(l) if a default occurs under any Loan mortgage that is prior or subordinate to the lien of this Mortgage or the mortgagee under any prior or subordinate mortgage commences a foreclosure action in connection with said mortgage; it being further agreed by the Mortgagor that an Event of Default hereunder shall constitute an Event of Default under any such other mortgage or deed of trust held by the Mortgagee; or
(m) if the Mortgagor or any fee Guarantor defaults under any other agreement with the Mortgagee or any other amount lender involving indebtedness of $500,000 or more; or
(other than an amount n) if any membership interest in the Mortgagor shall be sold, assigned, transferred, conveyed, mortgaged, pledged, hypothecated or alienated without the prior written consent of the Mortgagee; or
(o) if any shares of the capital stock of the Corporate Guarantors shall be sold, assigned, transferred, conveyed, mortgaged, pledged, hypothecated or alienated without the prior written consent of the Mortgagee; provided however, this subsection 2.01(o) shall not apply to Enzo Biochem, Inc. so long as it remains a publicly traded entity and further provided, Enzo Biochem, Inc. shall not make or suffer a change that effectively changes control of Enzo Biochem, Inc. from current management, including without limitation, during any period of 24 consecutive months, a majority of the members of the Board of Directors of Enzo Biochem, Inc. cease to be composed of individuals (i) who were members of Board of Directors on the first day of such period, (ii) whose election or nomination to the Board of Directors was approved by individuals referred to in clause (ai) above constituting at the time of such election or nomination at least a majority of the Board of Directors or (iii) whose election or nomination to the Board of Directors was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of the Board of Enzo Biochem, Inc.; or
(p) if it shall be illegal for the Mortgagor to pay any tax referred to in Section 1.08 hereof or if the payment of such tax by the Mortgagor would result in the violation of the usury laws of the State of New York; or
(q) if a default by the Mortgagor or Enzo Life Sciences, Inc. shall occur under the XXX Company Lease, XXX Lease, or Enzo Life Sciences Sublease which continues beyond the applicable notice and grace periods; then and in every such case:
I. During the continuance of any such Event of Default, the Mortgagee, by written notice given to the Agency and Mortgagor, may declare the entire principal of the Note then outstanding (if not then due and payable), and all accrued and unpaid interest thereon, together with all other Indebtedness to be due and payable immediately, and upon any such declaration the principal of the Note, said accrued and unpaid interest thereon, and all other Indebtedness shall become and be immediately due and payable by the Mortgagor anything in the Note or in this Mortgage to the contrary notwithstanding;
II. During the continuance of any such Event of Default, the Mortgagee personally, or by its agents or attorneys, may enter into and upon all or any part of the Premises, and each and every part thereof, and may exclude the Agency and the Mortgagor, its agents and servants wholly therefrom; and having and holding the same, may use, operate, manage and control the Premises and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, the Mortgagee, at the expense of the Mortgaged Property, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid, may complete the construction of any of the Improvements and in the course of such completion may make such changes in the contemplated Improvements as it may deem desirable and may insure the same; and likewise, from time to time, at the expense of the Mortgagor, the Mortgagee may make all necessary or proper repairs, renewals and replacements and such useful alterations, additions, betterments and improvements thereto and thereon as to it may seem advisable; and in every such case the Mortgagee shall have the right to manage and operate the Mortgaged Property and to carry on the business thereof and exercise all rights and powers of the Mortgagor with respect thereto either in the name of the Mortgagor or otherwise as it shall deem best; and the Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof, all of which shall for all purposes constitute property of the Mortgagee; and in furtherance of such right the Mortgagee may collect the rents payable under all leases (other than the Excluded Leases) of this Article) payable the Premises directly from the lessees thereunder upon notice to each such lessee that an Event of Default exists hereunder accompanied by a Loan Party demand on such lessee for the payment to the Mortgagee of all rents due and to become due under this Agreement its lease, and the Mortgagor FOR THE BENEFIT OF MORTGAGEE AND EACH SUCH LESSEE hereby covenants and agrees that the lessee shall be under no duty to question the accuracy of the Mortgagee’s statement of default and shall unequivocally be authorized to pay said rents to the Mortgagee without regard to the truth of the Mortgagee’s statement of default and notwithstanding notices from the Mortgagor disputing the existence of an Event of Default such that the payment of rent by the lessee to the Mortgagee pursuant to such a demand shall constitute performance in full of the lessee’s obligation under the lease for the payment of rents by the lessee to the Mortgagor; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments and improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Mortgaged Property, or any part thereof, as well as just and reasonable compensation for the services of the Mortgagee and for all attorneys, counsel, agents, clerks, servants and other Loan Document employees by it properly engaged and employed, the Mortgagee shall not be paidapply the moneys arising as aforesaid, first to the payment of the principal of the Note and the interest thereon, when and as the same shall become due and payable, and such failure shall continue unremedied for a period second to the payment of five Business Days;any other Indebtedness and sums required to be paid by the Mortgagor under this Mortgage.
III. The Mortgagee, with or without entry, personally or by its agents or attorneys, insofar as applicable, may:
(c1) any representation or warranty made intentionally omitted; or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d2) institute proceedings for the Borrower shall fail complete or partial foreclosure of this Mortgage; or
(3) take such steps to observe protect and enforce its rights whether by action, suit or perform proceeding in equity or at law for the specific performance of any covenant, condition or agreement contained in Section 5.01(d)(ithe Note, or in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as the Mortgagee shall elect; or
(4) the Mortgagee also shall have such other rights and/or remedies provided to a mortgagee and/or a secured party by the New York Uniform Commercial Code.
(a) The Mortgagee may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, the Mortgagee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by the Mortgagee under or by virtue of this Article II, the Mortgagee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold and shall execute and deliver to the appropriate governmental authority any affidavit, instrument, document and/or filing required pursuant to any applicable statute, ordinance, rule and/or regulation. As long as the loan secured by this Mortgage remains unpaid and an Event of Default has occurred and is continuing, the Mortgagee is hereby irrevocably appointed the true and lawful attorney-in-fact of the Mortgagor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose the Mortgagee may execute all necessary instruments of conveyance, assignment and transfer, including, without limitation, any affidavit, instrument, document or filing required pursuant to any applicable statute, rule or regulation, and may substitute one or more persons with like power, the Mortgagor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Nevertheless, the Mortgagor, if so requested by the Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to the Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the reasonable judgment of the Mortgagee, for that purpose, and as may be designated in such request. Any such sale or sales made under or by virtue of this Article II, whether made under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof, from, through or under the Mortgagor.
(c) In the event of any sale made under or by virtue of this Article II (whether made under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale), 5.02 (with respect the entire principal of, and interest on, the Note, if not previously due and payable, and all other sums required to be paid by the Mortgagor pursuant to this Mortgage, immediately thereupon, shall, anything in the Note or in this Mortgage to the Borrower’s existence) or 5.07 or in Article VI;contrary notwithstanding, become due and payable.
(ed) The purchase money proceeds or avails of any Loan Party shall fail to perform sale made under or observe by virtue of this Article II, together with any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to sums which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower then may be held by the Administrative Agent Mortgagee under this Mortgage, whether under the provisions of this Article II or any Lender orotherwise, (ii) a Responsible Officer of the Borrower becomes aware of such failure;shall be applied as follows:
Appears in 1 contract
Samples: Fee and Leasehold Mortgage and Security Agreement (Enzo Biochem Inc)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuingoccur:
(a) the Borrowers shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrowers shall fail to pay any interest on any Loan Loan, the Revolving Credit Commitment Fee or any other fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidFinancing Document, when and as within three (3) days after the same shall become due and payablepayable (other than when caused by an administrative error on the part of the Administrative Agent, and but such failure amount shall continue unremedied be payable immediately upon correction of any such error), whether at the due date thereof or at a date fixed for a period of five Business Daysprepayment thereof or otherwise;
(c) any representation or warranty made or, for purposes of Article III, or deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Credit Party in any other Loan Document the Financing Documents, or in any documentreport, certificate or certificate, financial statement delivered in connection with this Agreement or any other Loan Document document furnished pursuant to the Financing Documents, shall prove to have been incorrect in any material respect (or, if such representation or warranty is by its terms qualified by concepts of materiality, in any respect) as of the date when made or deemed made or reaffirmed, as the case may bemade;
(d) the Borrower Borrowers shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i)5.01, 5.02 (with respect to the Borrower’s insurance), 5.04 (with respect to audits and appraisals), 5.05, 5.08, 5.09 (with respect to Borrowers’ existence), 5.10(c) or 5.07 5.12 or in Article VI;
(e) any Loan Credit Party shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement of such Credit Party contained in this Agreement (other than those specified in Section 7.01(aclause (a), Section 7.01(b(b) or Section 7.01(d)(d) of this Article) or any other Loan Document Financing Document, and such failure shall continue unremedied for a period of thirty (30) days;
(f) default shall be made with respect to which it is any Material Indebtedness of any Credit Party if the effect of any such default shall be to accelerate, or to permit (with or without the giving of notice, the lapse of time or both) the holder or obligee of such Indebtedness (or any trustee on behalf of such holder or obligee) at its option to accelerate the maturity of such Indebtedness;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Party or its debts, or of a party substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, and, in any eventsuch case, such failure proceeding or petition shall remain unremedied continue undismissed for 30 calendar sixty (60) days after or an order or decree approving or ordering any of the earlier of foregoing shall be entered;
(h) any Credit Party shall (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent voluntarily commence any proceeding or file any Lender orpetition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a Responsible Officer timely and appropriate manner, any proceeding or petition described in clause (g) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the Borrower becomes aware foregoing;
(i) any Credit Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 (not covered by insurance where the carrier has accepted responsibility) shall be rendered against any Credit Party or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any material assets of any Credit Party to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;
(l) a Change in Control shall occur;
(m) any of the Financing Documents shall for any reason cease to be, or shall be asserted by any Person obligated thereunder not to be, a legal, valid and binding obligation of such failurePerson, including the improper filing by such Person of an amendment or termination statement relating to a filed financing statement describing the Collateral, or any Lien on any material portion of the Collateral purported to be created by any of such Financing Documents shall for any reason cease to be, or be asserted by any Person granting any such Lien not to be a valid, first priority perfected Lien (except to the extent otherwise permitted under any of the Financing Documents);
(n) any material damage to, or loss, theft or destruction of, any material Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty continuing for more than thirty (30) consecutive days beyond the coverage of any applicable business interruption insurance, if in the case of any of the foregoing, any such event or circumstance would reasonably be expected to have a Material Adverse Effect; or
(o) default under or failure by the Borrowers (or any Material Subsidiary formed in connection with the American Centrifuge project) to comply with any term or provision of the Lease Agreement dated July 1, 1993 between the DOE and Enrichment (as the same may from time to time be amended, modified, supplemented or restated in accordance with its terms), the DOE Agreement or any other material contract or agreement with the DOE or the Russian Contract, or any exercise by the DOE of its rights or remedies under the DOE Agreement, which, in each case, would reasonably be expected to result in a Material Adverse Effect; then, and in every such event (other than an event with respect to any Credit Party described in clause (g) or (h) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take any one or more of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers, (iii) require that the Borrowers deposit cash collateral in an amount equal to 105% of the L/C Exposure or (iv) exercise any other rights or remedies available under the Financing Documents or applicable law; and in case of any event with respect to the Credit Parties described in clause (g) or (h) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.
Appears in 1 contract
Events of Default and Remedies. If 5.1 The occurrence of any one or more of the following events (“Events each an "Event of Default”") shall occur and be continuing:constitute an Event of Default hereunder,
(a) Borrower shall be in default in the principal payment of any Loan or any reimbursement obligation in respect of any LC Disbursement the Obligations when due, which default shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed continue for prepayment thereof or otherwisethree (3) business days;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition covenant or agreement contained in Section 5.01(d)(iSections 6.4 and 6.7 of the Accounts Agreements, Sections 2.8, 2.9 and 2.11 of the Inventory and Equipment Security Agreement Supplement to the Accounts Agreement, or Sections 4.6 (but only to the extent of Indebtedness other than for borrowed money), 5.02 4.7 (with respect but only to the Borrower’s existenceextent of nonconsensual security interests, liens, claims or encumbrances), 4.12, 4.13, 4.14 and 4.15 hereof and such default shall continue uncured for a period of thirty (30) days; provided, that, such thirty (30) day cure period shall not apply in the case of:
(i) intentional breach on the part of management of Borrower of any of such covenants or 5.07 agreements; or
(ii) failure to observe or perform any such covenants or agreements, other than an intentional breach, which is not capable of being cured at all or within such thirty (30) day cure period, or which has been the subject of a prior failure within a six (6) month period; Provided, further, that the foregoing cure periods shall neither (A) impair Congress' exercise during such cure periods of any rights contained herein or in Article VIthe other Financing Agreements, other than any rights which it has only upon or after the occurrence of an Event of Default, nor (B) impair Congress' exercise of any default remedies immediately if, at the commencement of or at any time during such cure period there exists or occurs any Event of Default not subject to the foregoing cure period, whether based on the same or other circumstances or events; or
(c) Borrower shall fail to observe or perform any covenants or agreements contained in this Agreement, the other Financing Agreements or in any other document or instrument referred to herein or therein, other than as described in Section 5.1(a) and Section 5.1(b) above;
(d) any guarantor, endorser or other person liable on the Obligations shall terminate or breach any of the terms, covenants, conditions or provisions of any guarantee, endorsement or other agreement of such person with, or in favor of, Congress; or
(e) any Loan Party representation, warranty or statement of fact when made to Congress at any time by or on behalf of Borrower is false or misleading in any material respect; or
(f) Borrower or any guarantor, endorser or other person liable on the Obligations shall fail become insolvent, generally unable to perform pay its debts as they mature, call a meeting of creditors or observe have a creditors' committee appointed, make a general assignment for the benefit of creditors, suspend or discontinue doing business for any reason, or shall commence any action or proceeding for the appointment of any trustee, receiver, custodian or liquidator of it or all or any part of its properties or assets; or
(g) a judgment is rendered against Borrower or any guarantor, endorser, or other termperson liable on the obligations in excess of $100,000 in any one case or in excess of $250,000 in the aggregate and the same shall remain undischarged for a period in excess of thirty (30) days or execution shall at any time not be effectively stayed; or
(h) Borrower or any guarantor, covenant endorser or agreement contained in this Agreement (other than those specified in Section 7.01(a)person liable on the obligations shall commence any action or proceeding for relief under the Bankruptcy Code or any reorganization, Section 7.01(b) arrangement, composition, readjustment, liquidation, dissolution or Section 7.01(d)) similar relief under the Bankruptcy Code or any other Loan Document present or future statute, law or regulation or shall take any corporate action to which it is a party and, in authorize any event, of such failure shall remain unremedied for 30 calendar days after the earlier of actions or proceedings; or
(i) written notice Borrower or any guarantor, endorser or other person liable on the Obligations shall have commenced against it any action or proceeding for relief under the Bankruptcy Code or any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the Bankruptcy Code or any other present or future statute, law or regulation or for the appointment of any trustee, receiver, custodian or liquidator of it or all or any part of its properties or assets, which action or proceeding is not dismissed within thirty (30) days of its commencement, or Borrower, any guarantor, endorser or such other person shall file any answer admitting or not contesting the allegations of a petition filed against it in any such action or proceeding or by any act or omission indicates its consent to, acquiescence in or approval of, any such action or proceeding or if the relief requested is granted sooner; or
(j) there shall be a material adverse change in the business, assets or condition (financial or otherwise) of Borrower from the date hereof; or
(k) there is any change in the majority control or ownership of Borrower;
(l) at any time, Congress shall, in its discretion, consider the Obligations insecure or all or any part of the Collateral unsafe, insecure or insufficient and Borrower shall not on Congress' demand furnish other Collateral or make payment on account, reasonably satisfactory to Congress; or
(m) Borrower or any guarantor, endorser or other person liable on the Obligations shall default in the payment of any amounts at any time due on any Indebtedness owed by it or in the performance of any of the other terms or covenants of any evidence of such failure shall have been given Indebtedness or of any material mortgage, 33 security agreement, indenture, pledge or other agreement relating thereto or securing such Indebtedness or with respect to any material contract, lease, license or other agreement with any person other than Congress, including, without limitation, the Borrower by Purchase Agreements, the Administrative Agent Greexx Xxxeet Sale/Leaseback Agreements, and the Buhl Xxxeements, which default continues for more than the applicable cure period, if any, with respect thereto; or
(n) the occurrence of an event of default under any other agreement, document or instrument at any time executed and/or delivered to, with or in favor of Congress or any Lender orof its Affiliates by Borrower, (ii) a Responsible Officer any of its Subsidiaries or Affiliates or any other person liable on the Obligations, including, but not limited to, the other Financing Agreements.
5.2 Without limiting any rights or remedies of Congress at any time on or after an Event of Default pursuant to this Supplement or the other Financing Agreements or applicable law, Congress may, at its option, cure any default by Borrower or any of its Affiliates under any agreement, law, regulation, permit, license or approval with, or issued or promulgated by, any Person, which constitutes, or with notice or passage or both would constitute an Event of Default hereunder or under any of the other Financing Agreements, or pay or bond on appeal any judgment, order, directive, claim or citation entered or made against Borrower becomes aware (irrespective of the amount of said judgment or the time elapsed since entry thereof) and charge Borrower's account therefor, such failure;amounts to be repayable by Borrower to Congress on demand, together with interest thereon at the rate of interest then payable by Borrower under the Accounts Agreement; provided, however, Congress shall be under no obligation to effect such cure, payment or bonding and shall not, by making any payment for Borrower's account, be deemed to have assumed any obligation or liability of Borrower or any such Affiliate.
Appears in 1 contract
Samples: Accounts Financing Agreement (Transcrypt International Inc)
Events of Default and Remedies. If any of the following events (each an “Events Event of Default”) shall occur and be continuing:
(a) the The Company or any other Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become becomes due and payable, whether at ; or the due date thereof Company or at a date fixed for prepayment thereof or otherwise;
(b) any other Borrower shall fail to pay any interest on any Loan or any fee or make any other amount (payment of fees or other than an amount referred to in clause (a) of this Article) amounts payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as Note within five (5) Business Days after the same shall become becomes due and payable, and such failure shall continue unremedied for a period of five Business Days;; or
(cb) any Any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the any Borrower herein, at the direction of the Borrower herein or by any Loan Party in Borrower (or any other Loan Document or in any document, certificate or financial statement delivered of its officers) in connection with this Agreement or by any other Loan Document Subsidiary Borrower in the Borrowing Subsidiary Agreement pursuant to which such Subsidiary Borrower became a Borrower hereunder shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;made; or
(di) the Borrower The Company shall fail to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.01(d)(i)Sections 5.04, 5.02 (with respect to the Borrower’s existence) 5.08 or 5.07 5.10 or in Article VI;
, or (eii) any Loan Party the Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) on its part to be performed or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, observed if such failure pursuant to this clause (ii) shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower Company by the Administrative Agent or any Lender Lender; or
(d) The Company or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Company or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than (i) by a regularly scheduled required prepayment or redemption or (ii) a Responsible Officer prepayment or redemption required solely as a result of the Borrower becomes aware proceeds of such failureDebt not having been applied to consummate a transaction or toward any other purpose for which such Debt was incurred), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Company or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Company or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Company or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) one or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against the Company, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Material Subsidiary to enforce any such judgment; or
(g) (i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Voting Stock of the Company representing 30% or more of the combined voting power of all Voting Stock of the Company; or (ii) during any period of up to 24 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such 24-month period were directors of the Company shall cease for any reason (other than due to death or disability) to constitute a majority of the board of directors of the Company (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of the Company, (y) nominated for election by a majority of the remaining members of the board of directors of the Company and thereafter elected as directors by the shareholders of the Company or (z) whose election or nomination was approved by a majority of the remaining members of the board of directors of the Company); or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $100,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Company or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or
(iv) so long as any Subsidiary of the Company is a Subsidiary Borrower, any provision of Article X shall for any reason cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing; then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the obligation of each Lender to make Loans (other than Loans made pursuant to Section 2.06(e)) and of the Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the Loans, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company or any other Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Loans (other than Loans made pursuant to Section 2.06(e)) and of the Issuing Bank to issue Letters of Credit shall automatically be terminated and (B) the Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the either Borrower herein, at the direction of the either Borrower or by any Loan Party either Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the such Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party either Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the either Borrower becomes aware of such failure;
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If 16.1 The occurrence of any one or more of the following events (“Events "Event of Default”") shall occur and be continuingconstitute a breach of this Lease by Tenant:
(a) the principal of Tenant fails to pay any Loan Base Rent or any reimbursement obligation in respect of any LC Disbursement additional monthly rent under section 3.1 hereof as and when such rent becomes due and payable and such failure continues for more than three (3) days after Landlord gives written notice thereof to Tenant (which notice shall not be paid when and as deemed to be in lieu of or to satisfy the provision of California Code of Civil Procedure Section 1161 or any successor statute); provided, however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall be required to establish an Event of Default in the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;calendar year; or
(b) Tenant fails to pay any interest on any Loan additional rent or any fee or any other amount (other than an amount referred to in clause (a) of this Article) money or charge payable by a Loan Party under this Agreement Tenant hereunder as and when such additional rent or any other Loan Document amount or charge becomes due and payable and such failure continues for more than five (5) days after Landxxxx xxxes written notice thereof to Tenant (which notice shall not be paiddeemed to be in lieu of or to satisfy the provision of California Code of Civil Procedure Section 1161 or any successor statute); provided, when and as however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall be required to establish an Event of Default in the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;calendar year; or
(c) any representation Tenant fails to perform or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in breaches any other Loan Document agreement or in any documentcovenant of this Lease to be performed or observed by Tenaxx xx and when performance or observance is due and such failure or breach continues for more than twenty (20) days after Landxxxx xxxes written notice thereto to Tenant; provided, certificate however, that if, by the nature of such agreement or financial statement delivered in connection covenant, such failure or breach cannot reasonably be cured within such period of twenty (20) days, an Event of Default shall not exist as long as Tenant commences with this Agreement due diligence and dispatch the curing of such failure or any other Loan Document shall prove to have been incorrect in any material respect when made breach within such period of twenty (20) days and, having so commenced, thereafter prosecutes with diligence and dispatch and completes the curing of such failure or deemed made or reaffirmed, as the case may be;breach; or
(d) the Borrower shall fail to observe Tenant (i) files, or perform any covenant, condition consents by answer or agreement contained in Section 5.01(d)(i), 5.02 (with respect otherwise to the Borrower’s existence) filing against it of, a petition for relief or 5.07 reorganization or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) arrangement or any other Loan Document petition in bankruptcy or for liquidation or to which it is a party andtake advantage of any bankruptcy, in insolvency or other debtors' relief law of any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender orjurisdiction, (ii) makes an assignment for the benefit of its creditors, (iii) consents to the appointment of a Responsible Officer custodian, receiver, trustee or other officer with similar powers of Tenant or of any substantial part of Tenant's property, or (iv) takes action for the purpose of any of the Borrower becomes aware of such failure;foregoing; or
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become such payment is due and payable, (whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
), or (bii) any interest on any Loan or Loan, any fee or any other amount (other than an amount referred to in clause (ai) of this ArticleSection 9.01(a)) payable by a Loan Party under this Agreement hereunder or any other Loan Document shall not be paidpaid within five calendar days following the date on which the payment of interest, when and as the same shall become due and payable, and fee or such failure shall continue unremedied for a period of five Business Days;other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower WIL-Ireland or by any Loan Party Subsidiary herein or in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect (or, to the extent qualified by materiality or reference to Material Adverse Effect, in all respects) when made or deemed made or reaffirmed, as the case may be;; or ACTIVE 214387177
(dc) the Borrower any Obligor Party shall (i) fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII, (ii) fail to give any notice required by Section 7.01(d)(ii) or (iii) fail to perform or observe any Additional Financial Covenant (subject to any grace period applicable to such Additional Financial Covenant in Article VI;the Other Debt Document that contains such Additional Financial Covenant); or
(d) any Obligor Party shall fail to give any notice required by Section 7.01(c), 7.01(d)(i), 7.01(d)(iii), or 7.01(f) and, in any event, such failure shall remain unremedied for five Business Days after the earlier to occur of (i) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender Lender) and (ii) a Principal Financial Officer of any Obligor otherwise becoming aware of such failure; or
(f) WIL-Ireland or any of its Restricted Subsidiaries shall fail to make (whether as primary obligor or as guarantor or other surety) any payment (regardless of amount) of principal or interest or premium, if any, in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period thereto); or
(g) (i) any event or condition occurs that results in any Material Indebtedness (other than under Swap Agreements) becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) any event, condition or default occurs under any Swap Agreement that constitutes Material Indebtedness which default could enable the other counterparty to terminate such Swap Agreement; provided that clause (g)(i) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(h) any Obligor or any Material Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or ACTIVE 214387177
(i) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(j) any Obligor or any Material Subsidiary shall (i) voluntarily commence a case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, (ii) consent to the entry of a Responsible Officer decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, (iii) file a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, (iv) apply for or consent to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, (v) make an assignment for the benefit of creditors, or (vi) take any corporate or other action in furtherance of any of the foregoing; or
(k) a judgment or order for monetary damages shall be entered against any Obligor or any Restricted Subsidiary, which with other outstanding judgments and orders for monetary damages entered against the Obligors and the Restricted Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by independent third-party insurance as to which the respective insurer is financially sound and has not disputed coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon any such judgment; provided that if such judgment or order provides for any Obligor or any Restricted Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (i) if such Obligor or such Restricted Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches during such 30-day period and no enforcement proceeding is commenced by any creditor for payment of such judgment or order during such 30-day period); or
(l) at any time prior to Payment in Full, any Loan Document (other than one or more Collateral Documents intended to grant or perfect a Lien in Collateral with a net book value of less than $5,000,000 in the aggregate under all such Collateral Documents) shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or ACTIVE 214387177
(m) any Collateral Document shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and each of the Lenders), at any time after its execution and delivery and for any reason, fail to create a valid and perfected first priority security interest or other Lien in any material portion of the Collateral purported to be covered thereby, except to the extent permitted by the terms of any Loan Document, provided that it shall not be an Event of Default if the aggregate net book value of the Collateral with respect to which the Collateral Documents fail to create a valid and perfected first priority security interest or other Lien is less than $5,000,000; or
(n) an ERISA Event has occurred that would reasonably be expected (individually or collectively) to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL-Ireland, any of its Subsidiaries, the Borrower or any ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL-Ireland, any of its Subsidiaries, the Borrower or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan, or the PBGC shall have notified WIL-Ireland or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL-Ireland, any of its Subsidiaries and/or the Borrower or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL-Ireland, any of its Subsidiaries and/or the Borrower or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j)), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments (if the Commitments are then in effect), and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower becomes aware accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of such failure;any kind, all of which are hereby waived by the Borrower; ACTIVE 214387177 and in case of any event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j), the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors and the Administrative Agent and Lenders may enforce any and all of their rights and remedies under the Loan Document and applicable law.
Appears in 1 contract
Samples: Term Loan Agreement (Weatherford International PLC)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) (i) the principal of any Loan or Note or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Loan, Note or any fee reimbursement obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or 52
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower either Obligor herein, at the direction of the Borrower either Obligor or by any Loan Party either Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) either Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(d), (e) or (f); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party either Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to a Responsible Officer of the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower either Obligor becomes aware of such failure; or
(e) the Borrower or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the October 1997 Debentures beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $50,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of the Borrower or any of its Subsidiaries with an aggregate face amount which is equal to or exceeds $50,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of either Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging either Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of either Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of either Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by either Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by either Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of either Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by either Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by either Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by either Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by either Obligor or any Material Subsidiary in furtherance of any such action; or
(h) a judgment or order shall be entered against either Obligor or any Material Subsidiary, which with other outstanding judgments and orders entered against the Obligors and the Material Subsidiaries equals or exceeds $50,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment;
(i) any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by either Obligor or either Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $50,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on the Borrower, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $50,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $50,000,000 shall not have been made within 15 days of the date such contribution is due; or the Borrower, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of the Borrower, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $50,000,000, or (ii) the Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $50,000,000; then, and in every such event (other than an event with respect to either Obligor described in clause (f) or (g) of this Section 9.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors, and in case of any event with respect to either Obligor described in clause (f) or (g) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (each an “Events Event of Default”) shall occur and be continuing:
(a) the The Company or any other Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become becomes due and payable, whether at ; or the due date thereof Company or at a date fixed for prepayment thereof or otherwise;
(b) any other Borrower shall fail to pay any interest on any Loan or any fee or make any other amount (payment of fees or other than an amount referred to in clause (a) of this Article) amounts payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as Note within five (5) Business Days after the same shall become becomes due and payable, and such failure shall continue unremedied for a period of five Business Days;; or
(cb) any Any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the any Borrower herein, at the direction of the Borrower herein or by any Loan Party in Borrower (or any other Loan Document or in any document, certificate or financial statement delivered of its officers) in connection with this Agreement or by any other Loan Document Subsidiary Borrower in the Borrowing Subsidiary Agreement pursuant to which such Subsidiary Borrower became a Borrower hereunder shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;made; or
(di) the Borrower The Company shall fail to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.01(d)(i)Sections 5.04, 5.02 (with respect to the Borrower’s existence) 5.08 or 5.07 5.10 or in Article VI;
, or (eii) any Loan Party the Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) on its part to be performed or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, observed if such failure pursuant to this clause (ii) shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower Company by the Administrative Agent or any Lender Lender; or
(d) The Company or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Company or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than (i) by a regularly scheduled required prepayment or redemption or (ii) a Responsible Officer prepayment or redemption required solely as a result of the Borrower becomes aware proceeds of such failureDebt not having been applied to consummate a transaction or toward any other purpose for which such Debt was incurred), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Company or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Company or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Company or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) one or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against the Company, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Material Subsidiary to enforce any such judgment; or
(g) (i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Voting Stock of the Company representing 30% or more of the combined voting power of all Voting Stock of the Company; or (ii) during any period of up to 24 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such 24-month period were directors of the Company shall cease for any reason (other than due to death or disability) to constitute a majority of the board of directors of the Company (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of the Company, (y) nominated for election by a majority of the remaining members of the board of directors of the Company and thereafter elected as directors by the shareholders of the Company or (z) whose election or nomination was approved by a majority of the remaining members of the board of directors of the Company); or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $100,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Company or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or
(iv) so long as any Subsidiary of the Company is a Subsidiary Borrower, any provision of Article X shall for any reason cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing; then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the obligation of each Lender to make Loans to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the Loans, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company or any other Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Loans shall automatically be terminated and (B) the Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Daysthree days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the either Borrower herein, at the direction of the either Borrower or by any Loan Party either Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01(d)(iii), 5.02 5.03 (with respect to the such Borrower’s =s existence) or 5.07 5.08 or in Article VI;; Five-Year Facility 64
(e) any Loan Party either Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer an officer of the either Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or Article IX) or any payment in respect of any Hedging Agreement beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $5,000,000, or (ii) the Company or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have caused or shall have the ability to cause the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $5,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company, or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Company or any Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due; Five-Year Facility 65
(j) the General Partner fails to make (whether as primary obligator or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all such Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $10,000,000;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Company and the Subsidiaries in an aggregate amount exceeding (i) $5,000,000 in any year or (ii) $10,000,000 for all periods;
(m) either Borrower or any other Person shall petition or apply for or obtain any order restricting payment by the Issuing Bank under any Letter of Credit or extending the Issuing Bank=s liability under such Letter of Credit beyond the expiration date stated therein or otherwise agreed to by the Issuing Bank; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy) to the Company (a "Notice of Default") take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against either Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Company or any Subsidiary, the result of which would occur upon the giving of a Notice of Default as specified in clauses (i), (ii) and (v) below, shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued facility fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by each Borrower; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Company to comply, and the Company agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.06(k). Five-Year Facility 66
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(ai) the any installment of principal of on any Loan Note or any reimbursement obligation in respect of any LC Disbursement Reimbursement Obligation shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Note or any fee Reimbursement Obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(e); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to a Responsible Officer of the U.S. Borrower by the Administrative either Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure; or
(e) the U.S. Borrower or any Material Subsidiary (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the Debentures (other than the Obligations) beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $25,000,000, or (ii) fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have caused or shall have the ability to cause the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $25,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the U.S. Borrower or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the U.S. Borrower or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the U.S. Borrower or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the U.S. Borrower or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the U.S. Borrower or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the U.S. Borrower or any Material Subsidiary to the entry of a decree or order for relief in respect of the U.S. Borrower or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by the U.S. Borrower or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by the U.S. Borrower or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the U.S. Borrower or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by the U.S. Borrower or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the U.S. Borrower or any Material Subsidiary in furtherance of any such action; or
(h) there shall be commenced against the U.S. Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against the assets of the U.S. Borrower or any Material Subsidiaries which equals or exceeds $25,000,000 in value and which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall (other than with the consent of the Agents and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $25,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on the U.S. Borrower, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $25,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $25,000,000 shall not have been made within 15 days of the date such contribution is due; or the U.S. Borrower, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $25,000,000, or (ii) the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $25,000,000; or
(k) a judgment or order shall be entered against the U.S. Borrower or any Material Subsidiary, which with other outstanding judgments and orders entered against the U.S. Borrower and the Material Subsidiaries equals or exceeds $25,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; then, in any such event, and at any time thereafter if any Event of Default shall then be continuing, the U.S. Administrative Agent (or in the case of clause (iii) below, the Canadian Agent) may (and at the direction of the Majority Lenders, shall) do any or all of the following:
(i) without notice to the U.S. Borrower, the Canadian Borrower or any other Person, declare the U.S. Commitments and the Canadian Commitments terminated (whereupon the U.S. Commitments and the Canadian Commitments shall be terminated) and/or accelerate the Termination Date to a date as early as the date of termination of the Commitments;
(ii) terminate any Letter of Credit allowing for such termination, by sending a notice of termination as provided therein and require the applicable Borrower to provide Cover for outstanding Letters of Credit, and each Borrower agrees to provide such Cover;
(iii) require the Canadian Borrower to provide Cover for all outstanding Bankers Acceptance Liabilities, and the Canadian Borrower agrees to provide such Cover;
(iv) declare the principal amount then outstanding of and the unpaid accrued interest on the Loans and Reimbursement Obligations and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents to be forthwith due and payable, whereupon such amounts shall be and become immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the U.S. Borrower and the Canadian Borrower; provided, that in the case of the occurrence of an Event of Default with respect to any Obligor referred to in Section 9.01(f) or Section 9.01(g), the Commitments shall be automatically terminated the principal amount then outstanding of and unpaid accrued interest on the Loans and the Reimbursement Obligations and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents shall be and become automatically and immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the U.S. Borrower and the Canadian Borrower;
(v) increase the interest rate on all amounts then outstanding and the rate of all fees due in respect of Letters of Credit to the Past Due Rate; and
(vi) exercise any or all other rights and remedies available to either Agent or any Lenders under the Loan Documents, at law or in equity.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the either Borrower herein, at the direction of the either Borrower or by any Loan Party either Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the such Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party either Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the either Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or Article IX) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise),beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the Company or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(i) the General Partner fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness, when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all such Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the General Partner fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(j) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(ai) the principal of on any Loan or any reimbursement obligation in respect of any LC Disbursement Note shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan or any fee such Note or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(d) or (e); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to a Responsible Officer of the U.S. Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure; or
(e) the U.S. Borrower or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the October 1997 Debentures beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $25,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of the U.S. Borrower or any of its Subsidiaries with an aggregate face amount which is equal to or exceeds $25,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Borrower or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Borrower or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Borrower or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Borrower or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by any Borrower or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Borrower or any Material Subsidiary to the entry of a decree or order for relief in respect of any Borrower or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Borrower or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Borrower or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Borrower or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Borrower or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by any Borrower or any Material Subsidiary in furtherance of any such action; or
(h) there shall be commenced against any Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against the assets of the any Borrower or any Material Subsidiaries which equals or exceeds $25,000,000 in value and which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $25,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on the U.S. Borrower, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $25,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $25,000,000 shall not have been made within 15 days of the date such contribution is due; or the U.S. Borrower, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $25,000,000, or (ii) the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $25,000,000; or
(k) a judgment or order shall be entered against any Borrower or any Material Subsidiary, which with other outstanding judgments and orders entered against the Borrowers and the Material Subsidiaries equals or exceeds $25,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; then, in any such event, and at any time thereafter if any Event of Default shall then be continuing, the Administrative Agent may (and at the direction of the Majority Lenders, shall) do any or all of the following:
(i) without notice to any Borrower or any other Person, declare the Commitments terminated (whereupon the Commitments shall be terminated) and/or accelerate the Termination Date to a date as early as the date of termination of the Commitments;
(ii) declare the principal amount then outstanding of and the unpaid accrued interest on the Loans and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents to be forthwith due and payable, whereupon such amounts shall be and become immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by each Borrower; provided, that in the case of the occurrence of an Event of Default with respect to any Obligor referred to in Section 9.01(f) or Section 9.01(g), the Commitments shall be automatically terminated the principal amount then outstanding of and unpaid accrued interest on the Loans and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents shall be and become automatically and immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by each Borrower; and
(iii) exercise any or all other rights and remedies available to the Administrative Agent or any Lenders under the Loan Documents, at law or in equity.
Appears in 1 contract
Samples: Credit Agreement (Weatherford International Inc /New/)
Events of Default and Remedies. (a) If any of the following events (“Events of Default”) shall occur and be continuing:continuing (each such event shall be an “Event of Default”):
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(ci) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party District in any other Loan Financing Document or in any documentcertificate, certificate agreement, report instrument or financial statement delivered contemplated by or made or pursuant to or in connection with this Agreement or any other Loan Document shall prove to have been incorrect false or misleading in any material respect when made or deemed made or reaffirmed, as the case may bemade;
(dii) failure of the Borrower District to make any payment of the principal of or interest on the Loan, the Series 2018 Bond or any other Payment Obligation as and when due;
(iii) failure of the District to make any payment of any amount when due under this Agreement (other than a Payment Obligation) and such default shall fail continue for ten (10) days after written notice of such default shall have been given to the District by the Bank;
(iv) failure of the District to observe or perform the covenants set forth in Sections 9(a)(iii), 9(c) (but only with respect to the right to inspect and not the payment of the costs of such inspection), 9(f), 9(j) or 10 of this Agreement;
(v) failure of the District to observe or perform any covenantother covenant set forth in this Agreement and such failure shall have continued for 180 consecutive days; provided that if the District is diligently seeking to cure such Event of Default it may, condition or agreement contained in Section 5.01(d)(iby written notice to the Bank (which shall include detailed information regarding the actions being taken to cure), 5.02 request up to an additional sixty (60) days to cure such Event of Default, and the Bank shall not unreasonably reject such request;
(vi) any one of the long-term ratings assigned to the Series 2015 Bonds or any other Parity Debt is suspended or withdrawn for credit related reasons or downgraded below the Minimum Bond Rating.
(vii) the District makes an assignment for the benefit of creditors, enters into a composition agreement with creditors, files a petition in bankruptcy (to the extent permitted by law), is unable generally to pay its debts as they come due, is insolvent or bankrupt or there is entered any order or decree granting relief in any involuntary case commenced against the District under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or if the District petitions or applies to any tribunal or governmental entity for any receiver, trustee, liquidator, assignee, custodian or sequestrator (or other similar official) of the District or of any substantial part of the District’s assets, or the District commences any case or proceeding in a court of law for a reorganization, readjustment of debt, dissolution, liquidation or other similar procedure under the law or statutes of any jurisdiction, whether now or hereafter in effect, or if there is commenced against the District any such case or proceeding in a court of law which remains undismissed or shall not be discharged or vacated, or such jurisdiction shall not be relinquished or the District shall not have commenced proceedings to dismiss such case, within sixty (60) days after commencement, or the District by any act indicates its consent to, approval of, or acquiescence in any such case or proceeding in a court of law, or to an order for relief in an involuntary case commenced against the District under any such law, or to the appointment of any receiver, trustee, liquidator, assignee, custodian, sequestrator (or other similar official) for the District or a substantial part of the District’s assets, or if the District takes any action for the purposes of effecting the foregoing; or if the District becomes a debtor in a bankruptcy case or otherwise adjusts its debts under judicial administration or otherwise restructures its debts generally or is insolvent, bankrupt or unable to meet its debts as they become due;
(viii) any material provision of this Agreement, the other Financing Documents or any provision of the Funding Agreement which is referenced or incorporated in the Indenture shall cease to be valid and binding; or the District shall deny that it has any or further liability hereunder, under any of the other Financing Documents or any provision of the Funding Agreement which is referenced or incorporated in the Indenture;
(ix) the District shall default in the payment of any principal of or premium, if any, or interest on any of its Parity Debt, or the District shall default in the performance of any agreement (including any related financing document) under which any such Parity Debt is created if the effect of such default is to cause such Parity Debt to become, or to permit any holder or beneficiary thereof, or a trustee on behalf thereof, with notice if required, to declare such Parity Debt to be due prior to its stated maturity or scheduled payment date, whether pursuant to acceleration, mandatory tender, mandatory redemption or otherwise, after any applicable cure and payment periods, or a moratorium shall have been imposed by or with respect to the Borrower’s existenceDistrict with respect to any of its Parity Debt, or the occurrence of any of the foregoing may (in the reasonable judgment of the Bank) or 5.07 or in Article VI;
(e) any Loan Party shall fail have a material adverse effect on the ability of the District to perform its obligations hereunder or observe under any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Financing Document to which it is a party and, party;
(x) an “Event of Default” occurs as defined in any eventof the other Financing Documents or under any Bank Agreement;
(xi) a final, such failure shall remain unremedied for 30 calendar non-appealable judgment is entered or issued against the District in an aggregate amount in excess of $200,000,000 and not satisfied within one hundred twenty (120) days after the earlier entry or issuance thereof, provided that an agreement providing for payment of a judgment in installments over a period of time in excess of one hundred and twenty (i120) written notice days shall be considered satisfaction of such failure shall judgment; or
(xii) any Parity Debt is declared to be in default by the holder thereof, and the holder of the Parity Debt has accelerated the maturity of the Parity Debt.
(b) Upon the occurrence of any Event of Default, the Bank may exercise, or cause to be exercised, any and all remedies it may have been given under any Financing Document or as otherwise available at law or in equity, including, without limitation, specific performance, mandamus or injunctive relief.
(c) Upon the occurrence of an Event of Default, the Bank may, by notice to the Borrower by District, terminate the Administrative Agent or any Lender or, (ii) a Responsible Officer undrawn portion of the Borrower becomes aware Authorized Loan Amount and its obligation to fund any advance of such failure;Loan proceeds.
(d) Notwithstanding the exercise of any other remedies provided for herein, upon the occurrence and during the continuance of any Event of Default, the Series 2018 Bond and any amounts due hereunder shall bear interest at the Default Rate.
Appears in 1 contract
Samples: Continuing Covenants Agreement
Events of Default and Remedies. If Upon the occurrence of any of the following events (“Events each an "Event of Default”"):
(1) shall occur and be continuing:
the Borrower (a) the shall fail to pay any principal of on any Loan when such amount becomes due in accordance with the terms hereof; or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) shall fail to pay any interest on any Loan or any fee other Obligation within three days of the date when such amount becomes due in accordance with the terms hereof or any other amount thereof; or
(other than an amount referred to in clause 2) the Borrower shall (a) default in the observance or performance of any covenant or agreement set forth in any Loan Document; (b) fail to deliver or cause to be delivered the information, notices or other items specified in this Article) payable by a Loan Party Agreement, or under this Agreement the Note or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;due; or
(c3) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at in the direction of the Borrower or by any Loan Party Note, in any other Loan Document Document, or in the Original Loan Agreement, or which is contained in any documentcertificate, certificate document or financial or other statement delivered in connection with this Agreement or any other Loan Document furnished at any time under or in connection herewith or therewith, shall prove to have been incorrect in any material respect when made on or deemed made or reaffirmed, as of the case may be;date made; or
(d4) the Borrower shall fail Case is either dismissed or converted to observe or perform Chapter 7 of the Code. then, and in any covenantsuch event: (i) the Lender may, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect by written notice to the Borrower’s existence, declare its obligation to make Loans hereunder to be immediately terminated, whereupon such obligation shall immediately terminate, and (ii) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other termthe Lender may, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) by written notice of such failure shall have been given default to the Borrower Borrower, declare the Loans hereunder (with accrued interest thereon) and all other Obligations to be immediately due and payable, and upon the giving of such notice of default, all such amounts immediately shall become due and payable without further demand, notice or protest of any kind; the giving of any such further demand, notice or protest being hereby expressly waived by the Administrative Agent Borrower, and all other Persons directly or any Lender or, (ii) a Responsible Officer indirectly liable for the payment and/or performance of the Borrower becomes aware Obligations; and thereupon, the Lender may proceed to exercise any and all remedies that are provided to it under this Agreement, the Note, the other Loan Documents, applicable law or by order of such failure;the Court.
Appears in 1 contract
Samples: Loan Agreement (Borden Chemicals & Plastics Limited Partnership /De/)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(ai) the any installment of principal of on any Loan Note or any reimbursement obligation in respect of any LC Disbursement Reimbursement Obligation shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Note or any fee Reimbursement Obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(e); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to a Responsible Officer of the U.S. Borrower by the Administrative either Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure; or
(e) the Bermuda Parent or any Material Subsidiary (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the Debentures (other than the Obligations) beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $25,000,000, or (ii) fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have caused or shall have the ability to cause the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $25,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Bermuda Parent, the U.S. Borrower or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Bermuda Parent, the U.S. Borrower or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Bermuda Parent, the U.S. Borrower or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Bermuda Parent, the U.S. Borrower or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the Bermuda Parent, the U.S. Borrower or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Bermuda Parent, the U.S. Borrower or any Material Subsidiary to the entry of a decree or order for relief in respect of the Bermuda Parent, the U.S. Borrower or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by the Bermuda parent, the U.S. Borrower or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by the Bermuda Parent, the U.S. Borrower or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Bermuda Parent, the U.S. Borrower or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by the Bermuda Parent, the U.S. Borrower or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Bermuda Parent, the U.S. Borrower or any Material Subsidiary in furtherance of any such action; or
(h) there shall be commenced against the Bermuda Parent, the U.S. Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against the assets of the Bermuda Parent, the U.S. Borrower or any Material Subsidiaries which equals or exceeds $25,000,000 in value and which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall (other than with the consent of the Agents and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $25,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on the U.S. Borrower, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $25,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $25,000,000 shall not have been made within 15 days of the date such contribution is due; or the U.S. Borrower, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $25,000,000, or (ii) the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $25,000,000; or
(k) a judgment or order shall be entered against the Bermuda Parent, the U.S. Borrower or any Material Subsidiary, which with other outstanding judgments and orders entered against the U.S. Borrower and the Material Subsidiaries equals or exceeds $25,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; then, in any such event, and at any time thereafter if any Event of Default shall then be continuing, the U.S. Administrative Agent (or in the case of clause (iii) below, the Canadian Agent) may (and at the direction of the Majority Lenders, shall) do any or all of the following:
(i) without notice to the U.S. Borrower, the Canadian Borrower or any other Person, declare the U.S. Commitments and the Canadian Commitments terminated (whereupon the U.S. Commitments and the Canadian Commitments shall be terminated) and/or accelerate the Termination Date to a date as early as the date of termination of the Commitments;
(ii) terminate any Letter of Credit allowing for such termination, by sending a notice of termination as provided therein and require the applicable Borrower to provide Cover for outstanding Letters of Credit, and each Borrower agrees to provide such Cover;
(iii) require the Canadian Borrower to provide Cover for all outstanding Bankers Acceptance Liabilities, and the Canadian Borrower agrees to provide such Cover;
(iv) declare the principal amount then outstanding of and the unpaid accrued interest on the Loans and Reimbursement Obligations and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents to be forthwith due and payable, whereupon such amounts shall be and become immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the U.S. Borrower and the Canadian Borrower; provided, that in the case of the occurrence of an Event of Default with respect to any Obligor referred to in Section 9.01(f) or Section 9.01(g), the Commitments shall be automatically terminated and the principal amount then outstanding of and unpaid accrued interest on the Loans and the Reimbursement Obligations and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents shall be and become automatically and immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the U.S. Borrower and the Canadian Borrower;
(v) increase the interest rate on all amounts then outstanding and the rate of all fees due in respect of Letters of Credit to the Past Due Rate; and
(vi) exercise any or all other rights and remedies available to either Agent or any Lenders under the Loan Documents, at law or in equity.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (each, an “Events Event of Default”) shall occur and be continuingoccur:
(a) The Borrower shall fail to pay (i) any of the outstanding principal of any Loan or when due; (ii) any reimbursement obligation in respect accrued interest on any Loan within three (3) days of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof date; or at a date fixed for prepayment thereof (iii) the amounts required to be prepaid pursuant to Section 2 or otherwiseother amounts or fees owing pursuant to any of the Transaction Documents within five (5) days after the due date;
(b) The Borrower shall fail to perform or observe any interest on any Loan term, covenant, or any fee agreement contained in Xxxxxxx 0 (x), (x), (x), (x), (x), (x), (x), (x), (x) or any other amount (other than an amount referred to in clause (a) k), Section 6, or Section 4 of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business DaysSecurity Agreement;
(ci) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf The Custody Agreement shall have been terminated without the prior written consent of the Borrower hereinAgent, at unless a successor Custodian acceptable to the direction Agent has been appointed, or (ii) the Custodian (A) transfers or otherwise permits the withdrawal of a material amount of Collateral in contravention of the Borrower terms of the Control Agreement, or by any Loan Party in (B) fails to comply with any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as provision of the case may beControl Agreement;
(d) the The Borrower shall fail to observe pay to Custodian, within five (5) Business Days of the due date, any material fees, expenses or perform any covenantcharges payable by the Borrower under the Custody Agreement and such failure entitles the Custodian to seek repayment of such fees, condition expenses or agreement contained in Section 5.01(d)(i), 5.02 (with respect to charges from the Borrower’s existence) or 5.07 or in Article VICollateral Account;
(e) any Loan Party The Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement Agreement, any other Transaction Document (in each case, not otherwise specified in Subsections (a) to (e) above) to which such Person is a party or any other agreement between the Lender, the Agent or any Affiliate of Lender, on the one hand, and the Borrower, on the other hand, to be performed or observed by the Borrower and such failure remains unremedied for ten (10) Business Days;
(f) Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Transaction Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made in any material respect (except for any representation or warranty that is qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects);
(g) Any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower, Custodian or any other Person contests in any manner the validity or enforceability of any provision of any Transaction Document; or the Borrower denies that it has any or further liability or obligation under any Transaction Document, or purports to revoke, terminate or rescind any provision of any Transaction Document;
(A) The Borrower (x) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise and after giving effect to any applicable notice requirement or grace period) in respect of any Indebtedness (other than those specified Indebtedness hereunder and Indebtedness under Swap Contracts) and the aggregate outstanding principal amount for or in respect of all such Indebtedness (including undrawn committed or available amounts and amounts owing to all creditors under any combined or syndicated credit arrangement) is more than the Threshold Amount, or (y) fails to observe or perform any other agreement or condition relating to any Indebtedness in excess of the Threshold Amount or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which is to cause such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise) after giving effect to any applicable notice requirement or grace period; or (B) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (x) any event of default under such Swap Contract as to which the Borrower is the Defaulting Party (as defined in such Swap Contract) or (y) any Termination Event (as so defined) under such Swap Contract as to which the Borrower is an Affected Party (as so defined) and, in either event, the amount of all payments owed by the Borrower under all such Swap Contracts as of such Early Termination Date (prior to any payment thereof) together with the principal amount of all other Indebtedness (other than Indebtedness hereunder) that on or about such day has become due and payable pursuant to Sub-clause A of this Section 7(h) is greater than the Threshold Amount;
(i) The Borrower becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; (iii) the Borrower institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; (iv) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of the Borrower and the appointment continues undischarged or unstayed for sixty (60) calendar days; (v) any proceeding under any Debtor Relief Law relating to the Borrower or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for thirty (30) calendar days, or an order for relief is entered in any such proceeding; or (vi) the Borrower shall take any action to authorize any of the actions set forth above in this Section 7(i);
(j) There is entered against the Borrower (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non‑monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(k) A Regulatory Event shall occur;
(l) A Change of Management shall occur;
(m) [reserved];
(n) The Collateral Requirement shall cease to be satisfied, as determined by the Agent in good faith and in a commercially reasonable manner, or the Lender and/or the Agent shall cease to have a first priority perfected Lien in the Collateral, subject only to Permitted Liens;
(o) Any officer or employee of the Borrower or either Investment Adviser that has material involvement with the investment activities of the Borrower shall have been indicted, with respect to a Governmental Authority in a jurisdiction in the United States, or criminally charged with an offense by any other Governmental Authority that is punishable by deprivation of liberty for a maximum term which shall be greater than one (1) year, for a fraudulent act, a violation of securities or banking laws, or for a willful act related to the Borrower or its businesses or investment activities;
(i) The Borrower’s Net Asset Value (after giving effect to distributions, dividends, withdrawals, or redemptions of the Borrower) determined as of the last Business Day of any calendar month-end declines by fifty percent (50%) or more as compared to the Borrower’s Net Asset Value as of the last Business Day of that same calendar month in the immediately preceding calendar year;
(q) The Asset Coverage is less than 300% at any time after the Closing Date and is not cured within three (3) Business Days thereafter;
(r) A Margin Deficiency shall occur and such deficiency is not cured within the cure period set forth in Section 7.01(a2(f); provided that with respect to clause 2(f)(i), Section 7.01(bif such failure to cure is caused by an error or omission of an administrative or operational nature and funds or Eligible Collateral are available on such date to enable Borrower to cure such Margin Deficiency, then such failure shall not constitute an Event of Default unless such failure continues for one (1) or Section 7.01(d)Business Day after such date;
(s) The Borrower fails to make any material filing (including, without limitation, Forms N-CSR and N-CSRS) with the Securities and Exchange Commission or any other Loan Document to which it is a party andGovernmental Authority, as required by applicable Law, in each case, within the time period prescribed by applicable Law but after giving effect to any eventextension provided by filing a notification pursuant to Rule 12b-25 under the Exchange Act and any required approval by the applicable Governmental Authority; provided that to the extent such failure is caused by an error or omission of an administrative or operational nature, such failure shall remain unremedied not constitute an Event of Default unless such failure continues for 30 calendar days after the earlier of three (3) Business Days; provided, further that, (i) written notice the foregoing cure period shall not apply with respect to filings of such failure shall have been given to the Borrower by the Administrative Agent or any Lender orForms N-CSR and N-CSRS, and (ii) a Responsible Officer no such cure period shall apply to the extent two (2) filing failures have already occurred during the then current calendar year or the Borrower’s shares shall be suspended from trading on the New York Stock Exchange for more than two consecutive days upon which treading in shares generally occurs on such exchange or shall be delisted; or
(t) On or before 9:00 a.m. on any Business Day the Borrower fails to make publicly available its Net Asset Value as of the close of the immediately preceding Business Day; then, and in any such event, the Agent may (i) declare the Loans, all accrued interest thereon, all fees and all other accrued amounts payable under this Agreement and the other Transaction Documents to be forthwith due and payable, whereupon the Loans, all such interest and fees and all such other amounts hereunder and under the Transaction Documents shall become forthwith due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower becomes aware and (ii) declare the obligation of the Lender to make any Loan to be terminated, whereupon the same shall forthwith terminate provided, however, that upon the occurrence of any event in Section 7(i), (x) the Loans, all accrued interest and all accrued other amounts payable, including fees, under this Agreement and under the other Transaction Documents shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower and (y) the obligation of the Lender to make Loans shall automatically be terminated. In addition to the foregoing, upon the occurrence of an Event of Default and delivery of a Notice of Exclusive Control (as defined in the Control Agreement) to Custodian in accordance with the Control Agreement, the Agent may, at its option, instruct the Custodian to transfer the whole or any part of the Collateral into the name of the Agent or the name of its nominee, notify the obligors on any Collateral to make payment to the Agent or its nominee of any amounts due thereon, take control or grant its nominee the right to take control of any proceeds of the Collateral, liquidate any or all of the Collateral, withdraw and/or sell any or all of the Collateral and apply any such failure;Collateral as well as the proceeds of any such Collateral to all unpaid Obligations in such order as the Agent determines in its sole discretion, and exercise any other rights and remedies under any Transaction Document, at law or in equity. Borrower will be responsible for any decrease in the value of the Collateral occurring prior to liquidation.
Appears in 1 contract
Samples: Credit Agreement (Guggenheim Taxable Municipal Managed Duration Trust)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three (3) Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party the Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party the Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 thirty (30) calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise),beyond any period of grace provided with respect thereto (not to exceed thirty (30) days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, 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 foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(i) the General Partner fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness, when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed thirty (30) days); provided that the aggregate outstanding principal amount of all such Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the General Partner fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(j) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy) to the Borrower (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Borrower or any Subsidiary, the result of which would occur upon the giving of a Notice of Default as specified in clauses (i), (ii) and (v) below, shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued facility fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by the Borrower; and (iii) exercise any rights or remedies under the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If In addition to any other remedies the holders of Preferred Stock may have, if any of the following events (“Events of Default”) shall occur and be continuingoccur:
(a) the principal Corporation shall fail to redeem any shares of any Loan Preferred Stock required to be so redeemed under Section 5(a), (b) or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether (c) at the due applicable redemption price (whether or not there are funds legally available therefor) and on the date thereof fixed, or at by the last day, if any, of the period within which the Corporation is required to fix a date fixed date, for prepayment thereof or otherwise;redemption (a "Missed Redemption Date"); or
(b) the Corporation shall be in breach of any interest on of the covenants set forth under Section 7(a)(i), (a)(ii) or (a)(iii) (solely in any Loan or any fee or any other amount (other than an amount referred material respect with respect to in clause Section 7(a)(ii) and (a) of this Article(iii)), (b), (c) payable by a Loan Party under this Agreement or any other Loan Document (d) hereof and such breach shall not be paid, when and as have been cured within thirty (30) days of the same shall become due and payable, and Corporation's first having actual knowledge of such failure shall continue unremedied for breach (including by notice from a period holder of five Business Days;Preferred Stock); or
(c) if any representation issued and outstanding shares of FKW Preferred Stock are owned or warranty made orheld other than by the Corporation, an Event of Default (as such term is defined in the Certificate of Designations for purposes of Article III, deemed made by or on behalf the FKW Preferred Stock) under the terms of the Borrower hereinFKW Preferred Stock shall have occurred and be continuing; then, at upon the direction occurrence of any of the Borrower events set forth in clauses (a), (b) or by any Loan Party (c) above (each, an "Event of Default") and at all times thereafter until such time as such Event of Default has been cured in any full and no other Loan Document Event of Default remains uncured, (i) the dividend rate applicable to the Preferred Stock shall increase to a rate per annum equal to 11.5% of the Liquidation Price (if not already at such dividend rate pursuant to Section 3 hereof) effective upon (A) the Missed Redemption Date, (B) the expiration of the 30-day period described in clause (b) above if the breach(es) of the covenant(s) specified in clause (b) have not then been cured within such period or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed(C) the occurrence of an Event of Default under the terms of the FKW Preferred Stock, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) in the case of an Event of Default referred to in clauses (b) or (c) above, each holder of Preferred Stock shall have the right, at such holder's option, to require the redemption by the Corporation, in whole or in part, of such holder's shares of Preferred Stock (in accordance with the procedures set forth in Section 5(b) hereof), (iii) if a Responsible Officer holder exercises its right of redemption pursuant to the immediately preceding clause (ii) or in the case of an Event of Default under clause (a) above where the Corporation shall have failed to cure such Event of Default within ten (10) days after the original date fixed for redemption (or the last day, if any, of the Borrower becomes aware period within which the Corporation is required to fix a date for redemption), the redemption price for the shares of Preferred Stock to be redeemed shall be (or shall be increased to) the amount determined by dividing the Liquidation Price as of the date of such failure;redemption by the Discounted ADS Price and multiplying the resulting quotient by the Actual ADS Price and (iv) the holders of a majority of the outstanding shares of Preferred Stock shall have the right to cause the Corporation to enforce the Corporation's rights under the Funding Agreement and to direct the time, method and place of conducting any remedy available to the Corporation thereunder. In the event the Corporation breaches any of the provisions of Section 7(c) of this Article FOURTH, or if any of the provisions of Section 7(c) of the Certificate of Designations of the FKW Preferred Stock or Section 4 of the Funding Agreement shall be breached, such breach shall be deemed cured at such time as all accrued and unpaid dividends, if any, on the Preferred Stock that has been cumulatively added to the Liquidation Price, together with all other dividends accrued and unpaid on the Preferred Stock, shall have been declared and paid in full to the holders of the Preferred Stock. For greater certainty, if a holder of Preferred Stock exercises its right of redemption pursuant to clause (ii) above, then the redemption price, as adjusted pursuant to this Section 8, shall be payable by the Corporation irrespective of any subsequent cure of the Event of Default(s) that resulted in such right of redemption under clause (ii) above.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Fox Television Stations Inc /De/)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement Note shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any such Loan or any fee Note or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(dc) the Borrower any Obligor Party shall fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII (other than Section 8.09(b)) or fail to give any notice required by Section 7.01(d)(ii); or
(d) any Obligor Party shall fail to give any notice required by Section 7.01(c), 7.01(d)(i), 7.01(d)(iii), 7.01(d)(iv) or 7.01(f) and, in Article VI;any event, such failure shall remain unremedied for five Business Days after the earlier to occur of (i) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) any Loan Obligor Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b), 9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor Party of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(f) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness (other than Indebtedness outstanding under this Agreement) beyond any period of grace provided with respect thereto, provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $100,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate principal amount equal to or exceeding $100,000,000, in each case, if the effect thereof is to result in such Indebtedness becoming due prior to its scheduled maturity, or to permit the holder or holders of such Indebtedness, or any trustee or agent acting on its or their behalf, to cause such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance of such Indebtedness, prior to its schedule maturity; or
(g) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(h) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(i) a judgment or order for monetary damages shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders for monetary damages entered against the Obligors and the Material Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by independent third-party insurance as to which the respective insurer is financially sound and has not disputed coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; provided that if such judgment or order provides for any Obligor or any Material Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (i) if such Obligor or such Material Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches during such 30-day period and no enforcement proceeding is commenced by any creditor for payment of such judgment or order during such 30-day period); or
(j) other than as a result of (i) a transaction permitted by the terms of Section 8.02, (ii) the termination of the obligations of any Guarantor (other than WIL‑Switzerland) under the Guaranty Agreement pursuant to the terms thereof or (iii) the expiration or termination of the Commitments and the payment in full of the principal and interest on each Loan and all fees payable hereunder, any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any such Obligor shall deny that it has any or further liability or obligation thereunder; or
(k) any Plan shall have failed to meet the minimum funding standard under Section 430 of the Code or Section 303 of ERISA, or a Responsible Officer waiver of the minimum funding standard is sought under Section 412 of the Code with respect to a Plan, and either the failure to meet such minimum funding standard or a failure to obtain such a waiver, as applicable, would reasonably be expected (individually or collectively) to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified WIL-Switzerland or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in clause (g) or (h) of this Section 9.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower becomes aware accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of such failure;any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to any Obligor described in clause (g) or (h) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Samples: 364 Day Term Loan Agreement (Weatherford International Ltd./Switzerland)
Events of Default and Remedies. If 12.1 Events of Default. The occurrence or existence of any one or more of the following events (are referred to herein individually as an “Event of Default”, and collectively as “Events of Default”) shall occur and be continuing:
(a) (i) any Borrower fails to pay any of the principal Obligations when due or (ii) any Borrower or Guarantor fails to perform any of the covenants contained in Sections 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 9.10, 10.7, 10.8, and 10.11 of this Agreement and such failure shall continue for ten (10) days; provided, that, such ten (10) day period shall not apply in the case of: (A) any failure to observe any such covenant which is not capable of being cured at all or within such ten (10) day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by any Borrower or Guarantor of any Loan such covenant, or (iii) any Borrower or Guarantor fails to perform any of the terms, covenants, conditions or provisions contained in this Agreement or any reimbursement obligation of the other Loan Documents other than those described in respect of any LC Disbursement shall not be paid when Sections 12.1(a)(i) and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise12.1(a)(ii) above;
(b) any interest on representation, warranty or statement of fact made by any Borrower or Guarantor to Agent in this Agreement, the other Loan or any fee Documents or any other amount (other than an amount referred to written agreement, schedule, confirmatory assignment or otherwise shall when made or deemed made be false or misleading in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Daysmaterial respect;
(c) any representation Guarantor revokes or warranty made or, for purposes of Article III, deemed made by terminates or on behalf purports to revoke or terminate or fails to perform any of the Borrower hereinterms, at the direction covenants, conditions or provisions of the Borrower any guarantee, endorsement or by any Loan Party other agreement of such party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement favor of Agent or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may beLender;
(d) any judgment for the payment of money is rendered against any Borrower shall fail to observe or perform Guarantor in excess of $20,000,000 in any covenant, condition one case or agreement contained in Section 5.01(d)(i), 5.02 excess of $40,000,000 in the aggregate (with respect to the Borrower’s existenceextent not covered by insurance where the insurer has assumed responsibility in writing for such judgment) and shall remain undischarged or 5.07 unvacated for a period in excess of thirty (30) days or execution shall at any time not be effectively stayed, or any judgment other than for the payment of money, or injunction, attachment, garnishment or execution is rendered against any Borrower or Guarantor or any of the Collateral having a value in Article VIexcess of $5,000,000;
(e) any Loan Party Guarantor dissolves or suspends or discontinues doing business except to the extent permitted under Section 10.1 hereof;
(f) any Borrower, Guarantor or any of their respective Subsidiaries makes an assignment for the benefit of creditors, makes or sends notice of a bulk transfer or calls a meeting of its creditors or principal creditors in connection with a moratorium or adjustment of the Indebtedness due to them;
(g) a case or proceeding under the bankruptcy laws of the United States of America now or hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether at law or in equity) is filed against any Borrower or Guarantor, any of their respective Subsidiaries or all or any part of its or their properties and such petition or application is not dismissed within sixty (60) days after the date of its filing or any Borrower or Guarantor shall fail to perform file any answer admitting or observe not contesting such petition or application or indicates its consent to, acquiescence in or approval of, any such action or proceeding or the relief requested is granted sooner;
(h) a case or proceeding under the bankruptcy laws of the United States of America now or hereafter in effect or under any insolvency, reorganization, receivership, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether at a law or equity) is filed by any Borrower or Guarantor or any other termSubsidiary of Parent or for all or any part of its property, covenant or agreement contained any similar law now or hereafter in this Agreement effect in any jurisdiction or under any insolvency, arrangement, reorganization, moratorium, administration, receivership, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction now or hereafter in effect (whether at a law or equity) is filed, taken or commenced after the date hereof by any Borrower or Guarantor or any other direct or indirect Subsidiary of Parent or for all or any part of its property (other than those specified in with respect to a dissolution or liquidation permitted under Section 7.01(a10.1(c) hereof), Section 7.01(b) or Section 7.01(d)) including, without limitation, if any Borrower, Guarantor or any other Loan Document Subsidiary of Parent shall: (A) apply for, request or consent to which the appointment of a receiver, administrative receiver, receiver and manager, examiner, judicial custodian, trustee, liquidator, official manager, administrator, controller or any other similar official of it is or of all or a party andsubstantial part of its property and assets, (B) be generally unable, or admit in writing its inability, to pay its debts as they become due, (C) make a general assignment for the benefit of creditors, (D) file a voluntary petition or assignment in bankruptcy or a proposal seeking a reorganization, compromise, moratorium or arrangement with its creditors, (E) take advantage of any insolvency or other similar law pertaining to arrangements, moratoriums, compromises or reorganizations, or admit the material allegations of a petition or application filed in respect of it in any bankruptcy, reorganization or insolvency proceeding, or (F) take any corporate action for the purpose of effecting any of the foregoing;
(i) any default in respect of any Indebtedness of any Borrower or Guarantor (other than Indebtedness owing to Agent and Lenders hereunder), or other Subsidiary of Parent, in any eventcase in an amount in excess of $20,000,000, which default continues for more than the applicable cure period, if any, with respect thereto or any default by any Borrower or Guarantor under any Material Contract, which default continues for more than the applicable cure period, if any, with respect thereto and/or is not waived in writing by the other parties thereto;
(j) any material provision hereof or of any of the other Loan Documents shall for any reason cease to be valid, binding and enforceable with respect to any party hereto or thereto (other than Agent) in accordance with its terms, or any such failure party shall remain unremedied challenge the enforceability hereof or thereof, or shall assert in writing, or take any action or fail to take any action based on the assertion that any provision hereof or of any of the other Loan Documents has ceased to be or is otherwise not valid, binding or enforceable in accordance with its terms, or any security interest provided for 30 calendar days after herein or in any of the earlier other Loan Documents shall cease to be a valid and perfected first priority security interest in any of the Collateral purported to be subject thereto (except as otherwise permitted herein or therein);
(k) an ERISA Event shall occur which results in or could reasonably be expected to result in liability of any Borrower in an aggregate amount in excess of $20,000,000;
(l) any Change of Control;
(m) the indictment by any Governmental Authority of any Borrower or Guarantor of which any Borrower, Guarantor or Agent receives notice, in either case, as to which there is a reasonable possibility of an adverse determination, in the good faith determination of Agent, under any criminal statute, or commencement of criminal or civil proceedings against such Borrower or Guarantor, pursuant to which statute or proceedings the penalties or remedies may reasonably be expected to include forfeiture (i) written notice any of such failure shall have been given to the Borrower by the Administrative Agent Collateral having a value in excess of $5,000,000 or any Lender or, (ii) any other property of any Borrower or Guarantor which is necessary or material to the conduct of its business;
(n) there shall be a Responsible Officer Material Adverse Effect after the date hereof; or
(o) there shall be an event of default under any of the Borrower becomes aware of such failure;other Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Adc Telecommunications Inc)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or Note or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Loan, Note or any fee reimbursement obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(d), (e) or (f); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower a Responsible Officer of WIL by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure;; or
(e) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the October 1997 Debentures beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $50,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate face amount which is equal to or exceeds $50,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(h) a judgment or order shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders entered against the Obligors and the Material Subsidiaries equals or exceeds $50,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; or
(i) other than as a result of a transaction permitted by the terms of Section 8.02, any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $50,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $50,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $50,000,000 shall not have been made within 15 days of the date such contribution is due; or WIL, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $50,000,000, or (ii) WIL, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $50,000,000; then, and in every such event (other than an event with respect to any Obligor described in clause (f) or (g) of this Section 9.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers, and in case of any event with respect to any Obligor described in clause (f) or (g) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Events of Default and Remedies. SECTION 2.01. If any one or more of the following events (“Events of Default”) Default shall occur and be continuinghappen, that is to say:
(a) if (i) default shall be made in the principal payment of any Loan interest due under the Note, or any reimbursement obligation in respect the payment of any LC Disbursement shall not be paid when and as installment of principal due under the same shall become due and payableNote, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paideither such case, when and as the same shall become due and payable, and such failure default shall continue unremedied have continued for a period of five Business Days;
ten (c10) any representation days; or warranty (ii) default shall be made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document payment of the principal of the Note, when and as the same shall become due and payable, whether at maturity or by acceleration or as part of any prepayment or otherwise, in any documenteach case, certificate as in the Note and this Mortgage provided or financial statement delivered default in connection with this Agreement or the payment of any other Loan Document Indebtedness due to Mortgagee under this Mortgage and such default shall prove have continued for a period of ten (10) days; or (iii) default shall be made in the payment of any tax required by Section 1.07 to be paid and said default shall have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;continued for a period of twenty (20) days; or
(db) if default shall be made in the Borrower shall fail to observe due observance or perform performance of any covenant, condition term or agreement on the part of the Mortgagor contained in Section 5.01(d)(i)1.01, 5.02 1.03, or 1.08, and such default shall have continued for a period of twenty (with respect to the Borrower’s existence20) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of specifying such failure default shall have been given to the Borrower Mortgagor by the Administrative Agent Mortgagee, (i) unless such term, covenant or any Lender or, agreement cannot be complied with or such default be cured in such period and (ii) a Responsible Officer the Mortgagor has commenced compliance with such term, covenant or agreement or curing such default and continues to diligently prosecute such compliance or curing such default; or
(c) if any material representation made in Section 1.01 shall have been false when made; or
(d) if default shall be made in the due observance or performance of any other covenant, term or agreement on the part of the Borrower becomes aware Mortgagor in the Note, or in this Mortgage contained, and such default shall have continued for a period of twenty (20) days after notice specifying such default shall have been given to the Mortgagor by the Mortgagee, unless (i) such term, covenant or agreement cannot be complied with or such default be cured in such period and (ii) the Mortgagor has commenced compliance with such term, covenant or agreement or curing such default and continues to diligently prosecute such compliance or curing such default; or
(e) if by the order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property, or any part thereof, or of the Mortgagor shall be appointed and such order shall not be discharged or dismissed within sixty (60) days after such appointment; or
(f) if the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Mortgagor or of any substantial part of its property, or if the Mortgagor shall make any general assignment for the benefit of creditors, or if the Mortgagor shall fail generally to pay its debts as such debts become due, or if the Mortgagor shall take any action in furtherance of any of the foregoing; or
(g) if any of the creditors of the Mortgagor shall commence against the Mortgagor an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect and if such case shall not be discharged or dismissed within sixty (60) days after the date on which such case was commenced; or
(h) if final judgment for the payment of money in excess of the sum of $25,000 in the aggregate shall be rendered against the Mortgagor and the Mortgagor shall not discharge the same or cause it to be discharged or bonded within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; or
(i) destruction of all or a material portion of the premises, said determination to be made in the sole discretion of the Mortgagee; or
(j) intentionally omitted; or
(k) intentionally omitted; or
(l) if the Mortgagor sells, transfers, assigns, conveys or encumbers the Premises or any part thereof or any interest therein without the prior written consent of the Mortgagee; or
(m) if any default occurs after applicable grace periods, if any, under any mortgage that is subordinate to the lien of this Mortgage or the mortgagee under any subordinate mortgage commences a foreclosure action in connection with said mortgage, it being further agreed by the Mortgagor that an Event of Default hereunder shall constitute an Event of Default under any such other mortgage or deed of trust held by the Mortgagee; or
(n) if the Mortgagor defaults under any other agreement with the Mortgagee; or
(o) if Mortgagor pays out any cash dividends on its common stock during the term of the Note; and
(p) intentionally omitted; or
(q) if any representation or warranty of Mortgagor in any certificate, report, financial statement or other instrument furnished in connection with the making of the Note, this Mortgage, or any related loan document, shall prove false or misleading in any material respect or shall have omitted any substantial contingent or unliquidated liability or claim;
(r) if it shall be illegal for the Mortgagor to pay any tax referred to in Section 1.08 hereof or if the payment of such failure;tax by the Mortgagor would result in the violation of the usury laws of the State of New York; or
(s) if any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property commences an action or proceeding against the Mortgagor, the Mortgaged Property or any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property; or
(t) if any proceedings are commenced for the condemnation of any part of the Mortgaged Premises, which condemnation would have, in the opinion of the Mortgagee, a material adverse effect on the value of the remaining security hereunder; or
(u) the actual or threatened alteration, demolition or removal of the Improvements erected or to be erected upon the Premises or the Mortgaged Property; or
(v) if any easement over, across or under or otherwise affecting the Mortgaged Property or any portion thereof shall be granted without the Mortgagee's prior written consent; or
(w) if there occurs any other event, which if unremedied, would require a material and adverse change in the survey delivered to Mortgagee at time of closing; or
(x) failure of the Mortgagor, during the term of the Note, to maintain a Maximum Leverage of 1.
20:1. For purposes hereof, the term "Maximum Leverage" shall mean the ratio of total liabilities of the Mortgagor divided by its tangible net worth at all times; or
Appears in 1 contract
Samples: Consolidation, Extension and Modification Agreement (CVD Equipment Corp)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) the any installment of principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Daysthree days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower any Loan Party herein, at the direction of the Borrower any Loan Party or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01(d)(iii), 5.02 5.03 (with respect to the Borrower’s such Loan Party's existence) or 5.07 5.08 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer an officer of the Borrower any Loan Party becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company or any Restricted Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or Article IX or Article X) beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $2,000,000, or (ii) the Company or any Restricted Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have caused or shall have the ability to cause the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $2,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Bulk Terminals Inc)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the The Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid made to it when and as the same shall become becomes due and payable, whether at ; or the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) Borrower shall fail to pay any interest on any Loan made to it or any fee or any other amount payable by it hereunder or under any Notes (other than an amount referred to in clause (aprincipal) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue remains unremedied for a period of five three Business Days;; or
(cb) any Any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower any Loan Party herein or by any Loan Party in (or any other Loan Document or in any document, certificate or financial statement delivered of its officers) in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any respect (or incorrect in any material respect if such representation or warranty is not qualified by materiality or Material Adverse Effect) when made or deemed made or reaffirmed, as the case may be;made; or
(di) the Borrower Any Loan Party shall fail to perform or observe or perform any covenantterm, condition covenant or agreement applicable to it contained in Section 5.01(d)(i), 5.02 Sections 6.01(a) (with respect to its existence and the Borrower’s existencemaintenance of permits, licenses and franchises only), 6.01(c)(iv), 6.01(d), 6.01(e), 6.01(j) or 5.07 6.02; or in Article VI;
(eii) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a)on its part to be performed or observed, Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, and such failure shall remain remains unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower such Loan Party by the Administrative Agent Agent; or
(i) Any Loan Party or any Lender orof its Significant Subsidiaries shall fail to pay any principal of any other Debt of such Loan Party or such Significant Subsidiary which is outstanding in a principal amount of at least $50,000,000, or its equivalent in other currencies (in this clause (d) called “Material Debt”), in the aggregate when the same becomes due and payable (whether at scheduled maturity, by required prepayment, acceleration, demand or otherwise); (ii) or any other event shall occur or condition shall exist under any agreement or instrument relating to any Material Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of any Material Debt; or (iii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any Loan Party or any Significant Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Significant Subsidiary is the sole Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Significant Subsidiary as a Responsible Officer result thereof is greater than $50,000,000; or
(e) Any Loan Party or any of its Significant Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Loan Party or any of its Significant Subsidiaries seeking to adjudicate it as bankrupt or insolvent, or seeking suspension of payments, a moratorium of indebtedness, liquidation, winding up, reorganization, arrangement, administration, adjustment, protection, relief, or composition of it or its debts or similar relief under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against such Loan Party or any of its Significant Subsidiaries, such proceeding shall remain undismissed or unstayed for a period of 60 days, or shall become the subject of any Bail-In Action; or such Loan Party or any of its Significant Subsidiaries shall take any corporate action to authorize any of the Borrower becomes aware actions set forth above in this subsection (e); or
(f) Any Insurance Regulatory Authority shall appoint a rehabilitator, receiver, custodian, trustee, conservator or liquidator or the like (collectively, a “Receiver”) for PLIC or any other Insurance Subsidiary, or cause possession of all or any substantial portion of the property of PLIC or such other Insurance Subsidiary to be taken by any Receiver (or any Insurance Regulatory Authority shall make any filing or commence any legal proceeding with any court or other tribunal having jurisdiction over the matter to effect any of the foregoing); or
(g) A Change of Control shall occur; or
(h) Any final judgment or order for the payment of money in excess of $50,000,000 shall be rendered against any Loan Party or any of its Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such failure;judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(i) Any ERISA Event shall have occurred with respect to a Pension Plan and (i) the sum (determined as of the date of occurrence of such ERISA Event) of the Insufficiency of such Pension Plan and the Insufficiency of any and all other Pension Plans that are subject to such ERISA Event exceeds $50,000,000 and the adjusted funding target attainment percentage of any such Pension Plan, as most recently certified by the Pension Plan’s actuary in accordance with the Pension Funding Rules, is less than 80%, or (ii) the liability of any Loan Party and/or any ERISA Affiliate with respect to such ERISA Event and all other ERISA Events that may have occurred and then exist exceeds $50,000,000; or
(j) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by such Loan Party and its ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), exceeds $50,000,000 or requires payments exceeding $50,000,000 per annum; or
(k) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of such Loan Party and its ERISA Affiliates to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the respective plan years of such Multiemployer Plans immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $50,000,000; or
(l) Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any Loan Document or any material provision thereof; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Loans to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans and the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Loans and the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, (A) the obligation of each Lender to make Loans shall automatically be terminated and (B) the Loans and the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
Appears in 1 contract
Samples: Five Year Credit Agreement (Principal Financial Group Inc)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or Loan, any fee or any other amount (other than an amount referred to in clause (a) of this ArticleSection 7.01) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower any Credit Party herein or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmedmade, as the case may be;
(d) the Borrower shall fail any Credit Party fails to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(iSections 5.01(e)(i), 5.02 (with respect to the Borrowersuch Credit Party’s existence) or ), 5.07 or in Article VI;
(e) any Loan Credit Party shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or the Required Lenders;
(f) other than as specified in Section 7.01(a) or (b),
(i) the Borrower or any Lender Restricted Subsidiary or Material Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedge Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto; provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedge Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000 in the aggregate; provided that the events in this clause (i) shall only be deemed to have occurred with respect to Indebtedness of an Unrestricted Subsidiary that is a Material Subsidiary if either (x) such failure has continued unremedied for a period of at least 30 days or (y) the holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) have declared such Indebtedness to be due and payable (unless such failure to make payment occurs at the final maturity of such Indebtedness), or
(ii) the Borrower or any Restricted Subsidiary or Material Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if the effect of such failure, either individually or in the aggregate, causes or to permits the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000 to become due prior to its stated maturity or, any such Indebtedness shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment or as a mandatory prepayment (it being understood and agreed that a termination event or equivalent event pursuant to the terms of any Hedge Agreement would not be deemed a mandatory prepayment excluded hereby), prior to the stated maturity thereof; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due; provided, further, that the events in this clause (ii) shall only be deemed to have occurred with respect to Indebtedness of an Unrestricted Subsidiary that is a Material Subsidiary if either (x) such failure has continued unremedied for a period of at least 30 days or (y) the holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) have declared such Indebtedness to be due and payable;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a Responsible Officer timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall (x) not be covered by insurance and (y) remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower becomes aware or any Restricted Subsidiary to enforce any such judgment;
(k) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
(l) any Change in Control shall occur; or
(m) the Guarantee Agreement provided by any Material Subsidiary or, to the extent the Secured Obligations are secured in accordance with this Agreement after the occurrence of a Collateral Trigger Event, any of the Collateral Agreements pursuant to which the assets of the Borrower or any Material Subsidiary are pledged as Collateral, shall become invalid (other than pursuant to the terms of any Loan Document or as a result of acts or omissions of the Administrative Agent or any Lender) or the Borrower or any Credit Party shall deny or disaffirm in writing the obligations of the Borrower or such Credit Party under the Guarantee Agreement or such Collateral Agreement (or any of the foregoing shall occur with respect to a Credit Party that is not a Material Subsidiary or Collateral provided by a Credit Party that is not a Material Subsidiary and shall continue unremedied for a period of at least 30 days after receipt of written notice by the Borrower from the Administrative Agent or the Required Lenders); then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy) to the Borrower (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Borrower or any Material Subsidiary, the actions described in clauses (i), (ii), (iv) and (v) below shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued Commitment Fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by the Borrower and each Credit Party; (iii) exercise any rights or remedies under the Loan Documents or at law or in equity; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Borrower to comply, and the Borrower agrees that upon receipt of such failure;notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.05(l). Any amount received by the Administrative Agent from any Credit Party following any acceleration of the Obligations under this Agreement, the maturity of the Facilities or any Event of Default with respect to the Borrower under Section 7.01(g) or (h) shall be applied: (i) first, to the payment of all reasonable and documented fees, costs and expenses incurred by the Administrative Agent (and, to the extent appointed pursuant to the Collateral Documents, the Collateral Agent) in connection with such collection or sale or otherwise in connection with any Loan Document, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent (and, to the extent appointed pursuant to the Collateral Documents, the Collateral Agent) hereunder or under any other Loan Document on behalf of any Credit Party and any other reasonable and documented costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document; (ii) second, to the Secured Parties (which shall exclude any Hedge Bank or Cash Management Bank prior to the occurrence of a Collateral Delivery Date or following a Collateral Fall-Away Event), an amount equal to all interest and other amounts constituting Obligations owing to them on the date of any distribution (other than (x) principal, (y) reimbursements pursuant to Section 2.05(h) and (z) any obligation to Cash Collateralize the entire LC Exposure) on the date of any distribution, and any interest accrued thereon and, to the extent such obligations are secured following a Collateral Delivery Date but prior to any Collateral Fall-Away Event, any fees, premiums and scheduled periodic payments due under Secured Hedge Agreements or Secured Cash Management Agreements constituting Secured Obligations and any interest accrued thereon, in each case equally and ratably in accordance with the respective amounts thereof then due and owing; (iii) third, to the Secured Parties (which shall exclude any Hedge Bank or Cash Management Bank prior to the occurrence of a Collateral Delivery Date or following a Collateral Fall-Away Event), an amount (x) equal to the principal amount of all Obligations, any other obligations and any other amounts payable hereunder and premium thereon and any reimbursement obligations pursuant to Section 2.05(h), in each case owing to them on the date of any distribution and (y) sufficient to Cash Collateralize the entire LC Exposure on the date of any distribution, and, if such moneys shall be insufficient to pay such amounts in full and Cash Collateralize the entire LC Exposure, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the LC Exposure; and (z) to the extent such obligations are secured following a Collateral Delivery Date but prior to any Collateral Fall-Away Event, equal to any breakage, termination or other payments under Secured Hedge Agreements and Secured Cash Management Agreements constituting Secured Obligations and any interest accrued thereon, in each case equally and ratably in accordance with the respective amounts thereof due and owing; (iv) fourth, any surplus then remaining shall be paid to the applicable Credit Parties or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct; provided that (x) the foregoing shall be subject to any obligation under the Collateral Documents to make payments to any obligations pursuant to the Equal and Ratable Debt and (y) any amount applied to Cash Collateralize any LC Exposure that has not been applied to reimburse the Issuing Bank pursuant to Section 2.05(h) under the applicable Letters of Credit at the time of expiration of all such Letters of Credit shall be applied by the Administrative Agent in the order specified in clauses (i) through (iv) above.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in 77 Revolving Credit Facility the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(ai) the principal of on any Loan or any reimbursement obligation in respect of any LC Disbursement Note shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan or any fee such Note or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VIII or fails to give any notice required by Section 7.01(d) or (e); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to a Responsible Officer of the U.S. Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure; or
(e) the Bermuda Parent or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness or the October 1997 Debentures beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $25,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of the Bermuda Parent or any of its Subsidiaries with an aggregate face amount which is equal to or exceeds $25,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs, the continuance of any such decree or order for relief or any such other decree or order that shall be unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of any Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(h) there shall be commenced against any Obligor or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against the assets of the any Obligor or any Material Subsidiaries which equals or exceeds $25,000,000 in value and which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $25,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on the U.S. Borrower, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $25,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $25,000,000 shall not have been made within 15 days of the date such contribution is due; or the U.S. Borrower, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $25,000,000, or (ii) the U.S. Borrower, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $25,000,000; or
(k) a judgment or order shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders entered against the Obligors and the Material Subsidiaries equals or exceeds $25,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; then, in any such event, and at any time thereafter if any Event of Default shall then be continuing, the Administrative Agent may (and at the direction of the Majority Lenders, shall) do any or all of the following:
(i) without notice to any Borrower or any other Person, declare the Commitments terminated (whereupon the Commitments shall be terminated) and/or accelerate the Termination Date to a date as early as the date of termination of the Commitments;
(ii) declare the principal amount then outstanding of and the unpaid accrued interest on the Loans and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents to be forthwith due and payable, whereupon such amounts shall be and become immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by each Borrower; provided, that in the case of the occurrence of an Event of Default with respect to any Obligor referred to in Section 9.01(f) or Section 9.01(g), the Commitments shall be automatically terminated and the principal amount then outstanding of and unpaid accrued interest on the Loans and all fees and all other amounts payable hereunder, under the Notes and under the other Loan Documents shall be and become automatically and immediately due and payable, without notice (including notice of acceleration and notice of intent to accelerate), presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by each Borrower; and
(iii) exercise any or all other rights and remedies available to the Administrative Agent or any Lenders under the Loan Documents, at law or in equity.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(ai) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement Note shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any such Loan or any fee Note or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Article VII or fails to give any notice required by Section 6.01(d), 6.01(e) or 6.01(f); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a8.01(a), Section 7.01(b8.01(b) or Section 7.01(d8.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower a Responsible Officer of WIL by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower any Obligor becomes aware of such failure;; or
(e) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $100,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate face amount or aggregate amount of commitments which is equal to or exceeds $100,000,000 (including without limitation the New Revolving Credit Facility Agreement); or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(g) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(h) a judgment or order shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders entered against the Obligors and the Material Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; or
(i) other than as a result of a transaction permitted by the terms of Section 7.02, any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) exceeds $50,000,000, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought or granted under Section 412 of the Code with respect to a Plan; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) exceeds $50,000,000; any required contribution to a Plan or Multiemployer Plan in excess of $50,000,000 shall not have been made within 15 days of the date such contribution is due; or WIL, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL, any consolidated Subsidiary and/or an ERISA Affiliate securing an amount(s) equal to or exceeding $50,000,000, or (ii) WIL, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto equal to or exceeding $50,000,000; then, and in every such event (other than an event with respect to any Obligor described in clause (f) or (g) of this Section 8.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers, and in case of any event with respect to any Obligor described in clause (f) or (g) of this Section 8.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Weatherford International LTD)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(ai) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become such payment is due and payable, (whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
), or (bii) any interest on any Loan or Loan, any fee or any other amount (other than an amount referred to in clause (ai) of this ArticleSection 9.01(a)) payable by a Loan Party under this Agreement hereunder or any other Loan Document shall not be paidpaid within five calendar days following the date on which the payment of interest, when and as the same shall become due and payable, and fee or such failure shall continue unremedied for a period of five Business Days;other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIIV, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower WIL-Ireland or by any Loan Party Subsidiary herein or in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect (or, to the extent qualified by materiality or reference to Material Adverse Effect, in all respects) when made or deemed made or reaffirmed, as the case may be;; or
(dc) the Borrower any Obligor Party shall (i) fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor), Section 7.13 or Article VIII, (ii) fail to give any notice required by Section 7.01(d)(ii) or 5.07 (iii) fail to perform or observe any Additional Financial Covenant (subject to any grace period applicable to such Additional Financial Covenant in Article VI;the Other Debt Document that contains such Additional Financial Covenant); or
(d) any Obligor Party shall fail to give any notice required by Section 7.01(c), 7.01(d)(i), 7.01(d)(iii) or 7.01(f) and, in any event, such failure shall remain unremedied for five Business Days after the earlier to occur of (i) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender Lender) and (ii) a Principal Financial Officer of any Obligor otherwise becoming aware of such failure; or
(f) WIL-Ireland or any of its Restricted Subsidiaries shall fail to make (whether as primary obligor or as guarantor or other surety) any payment (regardless of amount) of principal or interest or premium, if any, in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any grace period thereto); or
(i) any event or condition occurs that results in any Material Indebtedness (other than under Swap Agreements) becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) any event, condition or default occurs under any Swap Agreement that constitutes Material Indebtedness which default could enable the other counterparty to terminate such Swap Agreement; provided that clause (g)(i) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(h) any Obligor or any Material Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or
(i) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(j) any Obligor or any Material Subsidiary shall (i) voluntarily commence a case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, (ii) consent to the entry of a Responsible Officer decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, (iii) file a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, (iv) apply for or consent to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, (v) make an assignment for the benefit of creditors, or (vi) take any corporate or other action in furtherance of any of the Borrower becomes aware foregoing; or
(k) a judgment or order for monetary damages shall be entered against any Obligor or any Restricted Subsidiary, which with other outstanding judgments and orders for monetary damages entered against the Obligors and the Restricted Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by independent third-party insurance as to which the respective insurer is financially sound and has not disputed coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon any such judgment; provided that if such judgment or order provides for any Obligor or any Restricted Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (i) if such Obligor or such Restricted Subsidiary makes each such periodic payment when due in accordance with the terms of such failure;judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches during such 30-day period and no enforcement proceeding is commenced by any creditor for payment of such judgment or order during such 30-day period); or
(l) at any time prior to Payment in Full, any Loan Document (other than one or more Collateral Documents intended to grant or perfect a Lien in Collateral with a net book value of less than $5,000,000 in the aggregate under all such Collateral Documents) shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(m) any Collateral Document shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and each of the Lenders), at any time after its execution and delivery and for any reason, fail to create a valid and perfected security interest or other Lien in any material portion of the Collateral purported to be covered thereby having the priority required hereby or thereby, except to the extent permitted by the terms of any Loan Document, provided that it shall not be an Event of Default if the aggregate net book value of the Collateral with respect to which the Collateral Documents fail to create a valid and perfected second priority security interest or other Lien is less than $5,000,000; or
(n) an ERISA Event has occurred that would reasonably be expected (individually or collectively) to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL-Ireland, any of its Subsidiaries, any Borrower or any ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL-Ireland, any of its Subsidiaries, any Borrower or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan, or the PBGC shall have notified WIL-Ireland or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL-Ireland, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL-Ireland, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j)), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j), the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors and the Administrative Agent, the Collateral Agent and the Lenders may enforce any and all of their rights and remedies under the Loan Document and applicable law.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Weatherford International PLC)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement Note shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any such Loan or any fee Note or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(dc) the Borrower any Obligor Party shall fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII or fail to give any notice required by Section 7.01(d)(ii); or
(d) any Obligor Party shall fail to give any notice required by Section 7.01(c), 7.01(d)(i), 7.01(d)(iii), 7.01(d)(iv) or 7.01(f) and, in Article VI;any event, such failure shall remain unremedied for five Business Days after the earlier to occur of (i) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) any Loan Obligor Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b), 9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor Party of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(f) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness (other than Indebtedness outstanding under this Agreement) beyond any period of grace provided with respect thereto, provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $100,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate principal amount equal to or exceeding $100,000,000, in each case, if the effect thereof is to result in such Indebtedness becoming due prior to its scheduled maturity, or to permit the holder or holders of such Indebtedness, or any trustee or agent acting on its or their behalf, to cause such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance of such Indebtedness, prior to its schedule maturity; or
(g) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(h) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(i) a judgment or order for monetary damages shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders for monetary damages entered against the Obligors and the Material Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by independent third-party insurance as to which the respective insurer is financially sound and has not disputed coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; provided that if such judgment or order provides for any Obligor or any Material Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (i) if such Obligor or such Material Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches during such 30-day period and no enforcement proceeding is commenced by any creditor for payment of such judgment or order during such 30-day period); or
(j) other than as a result of (i) a transaction permitted by the terms of Section 8.02, (ii) the termination of the obligations of any Guarantor (other than WIL-Switzerland) under the Guaranty Agreement pursuant to the terms thereof or (iii) the expiration or termination of the Commitments and the payment in full of the principal and interest on each Loan and all fees payable hereunder, any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any such Obligor shall deny that it has any or further liability or obligation thereunder; or
(k) any Plan shall have failed to meet the minimum funding standard under Section 430 of the Code or Section 303 of ERISA, or a Responsible Officer waiver of the minimum funding standard is sought under Section 412 of the Code with respect to a Plan, and either the failure to meet such minimum funding standard or a failure to obtain such a waiver, as applicable, would reasonably be expected (individually or collectively) to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified WIL-Switzerland or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in clause (g) or (h) of this Section 9.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments (if the Commitments are then in effect), and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower becomes aware accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of such failure;any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to any Obligor described in clause (g) or (h) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Samples: 364 Day Term Loan Agreement (Weatherford International Ltd./Switzerland)
Events of Default and Remedies. If 16.1 The occurrence of any one or more of the following events (“Events "Event of Default”") shall occur and be continuingconstitute a breach of this Lease by Tenant:
(a) Tenant fails to pay any Base Rent or additional monthly rent as and when such monthly rent becomes due and payable and such failure continues for more than three (3) days after Landlord gives written notice thereof to Tenant; provided, however, that after the principal second such failure in a calendar year, only the passage of any Loan or any reimbursement obligation time, but no further notice, shall be required to establish an Event of Default in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;calendar year; or
(b) Tenant fails to pay any interest on any Loan additional rent or any fee or any other amount (other than an amount referred to in clause (a) of this Article) money or charge payable by a Loan Party under this Agreement Tenant hereunder as and when such additional rent or any other Loan Document shall not be paid, when and as the same shall become amount or charge becomes due and payable, payable and such failure continues for more than ten (10) days after Xxxxxxxx gives written notice thereof to Tenant; provided, however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall continue unremedied for a period be required to establish an Event of five Business Days;Default in the same calendar year; or
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail Tenant fails to perform or observe any other termagreement, covenant or agreement contained in condition of this Agreement Lease to be performed or observed by Xxxxxx as and when performance or observance is due and such failure continues for more than ten (other than those specified in Section 7.01(a)10) days after Xxxxxxxx gives written notice thereof to Tenant; provided, Section 7.01(b) however, that if, by the nature of such agreement, covenant, or Section 7.01(d)) or any other Loan Document to which it is a party and, in any eventcondition, such failure shall remain unremedied for 30 calendar days after the earlier cannot reasonably be cured within such period of ten (i10) written notice days, an Event of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;Default
Appears in 1 contract
Events of Default and Remedies. If (a) Upon the occurrence of any one or more of the following events (“the "Events of Default”) ," any one an "Event of Default"), the party not in default shall occur and be continuinghave the right to exercise any rights or remedies available in this Lease, at law or in equity. Events of Default shall be:
(ai) the principal Tenant's failure to pay when due any rental or other sum of any Loan or any reimbursement obligation in respect money payable under this Lease and such failure is not cured within ten (10) days after written notice of any LC Disbursement such failure; provided, however, that Landlord shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwiserequired to give notice more than twice during any twelve month period;
(bii) any interest on any Loan or any fee or Failure by either party to perform any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower hereinterms, at the direction of the Borrower covenants or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement conditions contained in this Agreement Lease if not remedied within thirty (other than those specified in Section 7.01(a), Section 7.01(b30) days after receipt of written notice of such failure; or Section 7.01(d)) or any other Loan Document to which it is a party and, in any eventif such default cannot be remedied within such period, such failure shall remain unremedied for 30 calendar party does not within thirty (30) days after the earlier of (i) written notice of such failure commence such act or acts as shall be necessary to remedy the default and shall not thereafter complete such act or acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition for the appointment of a receiver or trustee for all or substantially all of Tenant's assets and such petition or appointment shall not have been given set aside within sixty (60) days from the date of such petition or appointment, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement; or
(iv) Tenant vacates, abandons or fails to operate in the Borrower by the Administrative Agent Premises or any Lender or, (ii) a Responsible Officer substantial part of the Borrower becomes aware Premises or allows its leasehold estate to be taken under any writ of execution and such failure;writ is not vacated or set aside within thirty (30) days.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall (x) not be covered by insurance and (y) remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(k) a Change in Control shall occur;
(l) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect; then, and in any such event, and at any time thereafter (but for the avoidance of doubt, in each case, not prior to the Closing Date) if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy or electronic mail) to the Borrower (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Borrower or any Material Subsidiary, the actions described in clauses (i), (ii) and (v) below shall occur automatically without the giving of any Notice of Default): (i) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by the Borrower; and (ii) exercise any rights or remedies under the Loan Documents.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or Note or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Loan, Note or any fee reimbursement obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(c) any Obligor shall fail to perform or observe any covenant contained in Section 7.01(e) or Article VIII or fail to give any notice required by Section 7.01(d) or 7.01(f); or
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b) or Section 7.01(d9.01(c)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower a Responsible Officer of WIL by the Administrative Agent or any Lender Lender; or
(e) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness beyond any period of grace provided with respect thereto (not to exceed 30 days), provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $100,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate principal amount equal to or exceeding $100,000,000; or
(f) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a Responsible Officer decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(g) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(h) a judgment or order shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders entered against the Obligors and the Material Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by insurance as to which the respective insurer has acknowledged coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; or
(i) other than as a result of a transaction permitted by the terms of Section 8.02, any Loan Document shall (other than with the consent of the Borrower becomes aware Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(j) any Plan shall incur an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA) which (individually or collectively) would reasonably be expected to have a Material Adverse Effect, whether or not waived, or a waiver of the minimum funding standard or extension of any amortization period is sought under Section 412 of the Code with respect to a Plan and the failure to obtain such a waiver or extension would reasonably be expected to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL, any consolidated Subsidiary or an ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL, any consolidated Subsidiary or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL, any consolidated Subsidiary and/or an ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL, any consolidated Subsidiary and/or an ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in clause (f) or (g) of this Section 9.01), and at any time thereafter during the continuance of such failure;event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Obligor described in clause (f) or (g) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Events of Default and Remedies. If any Each of the following events (shall constitute an “Events Event of Default”) ” hereunder, if the same shall occur and be continuingfor any reason whatsoever, whether voluntary or involuntary, by operation of law or otherwise:
(a) the Borrowers shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrowers shall fail to pay any interest on any Loan Loan, the Revolving Credit Commitment Fee or any other fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidFinancing Document, when and as within three (3) days after the same shall become due and payablepayable (other than when caused by an administrative error on the part of the Administrative Agent, and but such failure amount shall continue unremedied be payable immediately upon correction of any such error), whether at the due date thereof or at a date fixed for a period of five Business Daysprepayment thereof or otherwise;
(c) any representation or warranty made or, for purposes of Article III, or deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Credit Party in any other Loan Document the Financing Documents, or in any documentreport, certificate or certificate, financial statement delivered in connection with this Agreement or any other Loan Document document furnished pursuant to the Financing Documents, shall prove to have been incorrect in any material respect (or, if such representation or warranty is by its terms qualified by concepts of materiality, in any respect) as of the date when made or deemed made or reaffirmed, as the case may bemade;
(d) the Borrower Borrowers shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01, 5.02(b), 5.02 5.02(c), 5.04 (with respect to the Borrowerpermitting audits and appraisals), 5.05, 5.08, 5.09 (with respect to any Credit Party’s existence), 5.10(c), 5.10(j), 5.10(k) or 5.07 5.12 or in Article VI;
(e) any Loan Credit Party shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement of such Credit Party contained in this Agreement (other than those specified in Section 7.01(aclause (a), Section 7.01(b(b) or Section 7.01(d)(d) of this Article) or any other Loan Document to which it is a party andFinancing Document, in any event, and such failure shall remain continue unremedied for 30 calendar a period of thirty (30) days after the earlier of receipt by such Credit Party of notice thereof from the Administrative Agent (which notice shall be given at the request of any Lender) or after any officer of such Credit Party obtains knowledge thereof;
(i) written notice default shall be made with respect to any Material Indebtedness of any Credit Party if the effect of any such default shall be to accelerate, or to permit (with or without the giving of notice, the lapse of time or both) the holder or obligee of such failure Indebtedness (or any trustee on behalf of such holder or obligee) at its option to accelerate the maturity of such Indebtedness, or (ii) a “Fundamental Change” (as such term is defined in the Convertible Note Indenture) which, under the terms of the Convertible Note Indenture, permits the holders of the Convertible Notes to require Holdings to repurchase or redeem the Convertible Notes for cash (other than as permitted by Section 6.05) shall occur, and such “Fundamental Change” shall not have been given to cured or waived within the Borrower by applicable grace period (if any) set forth in the Administrative Agent Convertible Note Indenture;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Lender orCredit Party or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, 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 foregoing shall be entered;
(h) any Credit Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a Responsible Officer timely and appropriate manner, any proceeding or petition described in clause (g) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the Borrower becomes aware foregoing;
(i) any Credit Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 (not covered by insurance where the carrier has accepted responsibility) shall be rendered against any Credit Party or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any material assets of any Credit Party to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the Required Revolving Lenders voting as a separate Class or the Required Term Lenders voting as a separate Class, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;
(l) a Change in Control shall occur;
(m) any of the Financing Documents shall for any reason cease to be, or shall be asserted by any Person obligated thereunder not to be, a legal, valid and binding obligation of such failurePerson, including the improper filing by such Person of an amendment or termination statement relating to a filed financing statement describing the Collateral, or any Lien on any material portion of the Collateral purported to be created by any of such Financing Documents shall for any reason cease to be, or be asserted by any Person granting any such Lien not to be a valid, first priority perfected Lien (except to the extent otherwise permitted under any of the Financing Documents);
(n) any material damage to, or loss, theft or destruction of, any material Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty continuing for more than thirty (30) consecutive days beyond the coverage of any applicable business interruption insurance, if in the case of any of the foregoing, any such event or circumstance would reasonably be expected to have a Material Adverse Effect;
(o) default under or failure by the Borrowers to comply with any term or provision of the Lease Agreement dated July 1, 1993 between the DOE and Enrichment (as the same may from time to time be amended, modified, supplemented or restated in accordance with its terms), the DOE Agreement (other than those terms or provisions related to the deployment milestones for the American Centrifuge Project) or any other material contract or agreement with the DOE or the Russian Contract, or any exercise by the DOE of its rights or remedies under the DOE Agreement, which, in each case, would reasonably be expected to result in a Material Adverse Effect; or
(p) the occurrence of any material disruption in or cessation of operations at the Paducah Facility other than pursuant to a Paducah Orderly Shutdown or a Casualty Event.
Appears in 1 contract
Samples: Credit Agreement (Usec Inc)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuingoccur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this ArticleSection 7.01(a)) payable by a Loan Party under this Agreement or any other Loan Document shall not be paidDocument, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three (3) Business Days;
(c) any representation or warranty made or, for purposes of Article III, or deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party or any Subsidiary in this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any documentreport, certificate or certificate, financial statement delivered or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect in any material respect when made or deemed made (it being understood and agreed that any representation or reaffirmed, as the case may bewarranty which is subject to any materiality qualifier shall be required to be true and correct in all respects);
(d) the Borrower any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.02(a), 5.02 5.03 (with respect to the Borrowera Loan Party’s existence) or 5.07 ), 5.08, 5.15, or in Article VI; provided, any Event of Default with respect to Section 6.12(b) is subject to cure pursuant to Section 7.02;
(e) any Loan Party shall fail to observe or perform or observe any other termcovenant, covenant condition or agreement contained in this Agreement (other than those specified in Section 7.01(aclause (a), Section 7.01(b(b) or Section 7.01(d(d)) ), or any other Loan Document and such failure shall continue unremedied for a period of (i) 10 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of Section 5.01 or 5.02 (other than Section 5.02(a)) of this Agreement or (ii) 30 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of any other Section of this Agreement;
(f) any Loan Party or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than the First Lien Obligations), when and as the same shall become due and payable after giving effect to any applicable grace period;
(g) (i) any event or condition occurs that results in any Material Indebtedness (other than the First Lien Obligations) or Subordinated Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or Subordinated Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness or Subordinated Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or any commitment pursuant to such Material Indebtedness or Subordinated Indebtedness is cancelled or suspended; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05, or (ii) any event of default (which event of default shall not have been cured or waived within any applicable grace period) shall occur under the terms of the First Lien Credit Agreement or any other Loan Document (as defined in the First Lien Credit Agreement) (or any document governing any Refinancing Indebtedness thereof), the effect of which results in (x) the acceleration of all or a portion of the First Lien Obligations or declaration that all such First Lien Obligations are due and payable prior to the applicable stated maturity, (y) demand for repayment and (z) termination of any outstanding commitments thereunder;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of a Loan Party or Subsidiary or its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary or for a substantial part of its assets, 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 foregoing shall be entered;
(i) any Loan Party or any Subsidiary shall (i) other than a liquidation or dissolution permitted by Section 6.03(a)(v), voluntarily appoint an administrator or commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(h), (iii) apply for or consent to the appointment of an administrator, receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for such Loan Party or Subsidiary of any Loan Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any board of director action for the purpose of effecting any of the foregoing;
(j) any Loan Party or any Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not to, or fail generally, to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $5,750,000 in excess of insurance coverage therefor (as provided by an underwriter acceptable to Administrative Agent, where such underwriter has admitted coverage in writing, and such insurance coverage otherwise fully complies in all respects with this Agreement) shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of twenty (20) consecutive Business Days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or any Subsidiary to enforce any such judgment or any Loan Party or any Subsidiary shall fail within twenty (20) Business Days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the Loan Guaranty or any Obligation Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty or any Obligation Guaranty, or any Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty or any Obligation Guaranty to which it is a party, or any Guarantor shall deny that it has any further liability under the Loan Guaranty or any Obligation Guaranty to which it is a party, or shall give notice to such effect, including, but not limited to notice of termination delivered pursuant to Section 10.08 or any notice of termination delivered pursuant to the terms of any Obligation Guaranty;
(o) it is or becomes unlawful for a Loan Party to perform any of its obligations under the Loan Documents or a Loan Party repudiates a Loan Document or evidences an intention to repudiate a Loan Document or a material provision of a Loan Document is or becomes or is claimed by a party andother than the Administrative Agent to be wholly or partly invalid, void, voidable or unenforceable in any eventmaterial respect;
(p) except as permitted by the terms hereof of any Collateral Document, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice any Collateral Document shall for any reason fail to create a valid security interest in any Collateral purported to be covered thereby with a fair market value in excess of $5,750,000, or (ii) any Lien with respect to Collateral with a fair market value in excess of $5,750,000 securing any Secured Obligation shall cease to be a perfected Lien; or
(q) any Collateral Document with respect to Collateral with a fair market value in excess of $5,750,000 shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document; then, and in every such failure shall have been given event (other than an event with respect to the Borrower described in Section 7.01(h) or (i)), and at any time thereafter during the continuance of such event, subject to Section 7.02, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitments shall terminate immediately and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any event with respect to the Borrower described in Section 7.01(h) or (i), the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Notwithstanding the foregoing, the Administrative Agent’s remedies with respect to clause (ii) above shall include, upon request of the Required Lenders, the right to the appointment of a receiver or receiver-manager for any properties and assets of the Loan Parties (to the extent such Loan Parties’ properties and assets secure the Obligations), and each Loan Party hereby consents to such right and such appointment and hereby waives any objection each Loan Party may have thereto or the right to have a bond or security posted by the Administrative Agent or any Lender or, (ii) a Responsible Officer on behalf of the Borrower becomes aware Lenders, in connection therewith. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, increase the rate of interest applicable to the Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Administrative Agent or the Australian Security Trustee under the Loan Documents or at law or equity, including all remedies provided under the UCC (or the foreign equivalent, as applicable). It is understood and agreed that if the Loans are accelerated or otherwise become due prior to the Maturity Date, including without limitation as a result of any Event of Default set forth in clause (h) or (i) of Section 7.01 (including the acceleration of claims by operation of law), the Make-Whole Premium that would have been payable if the Loans were optionally prepaid pursuant to Section 2.11(a) on such date of acceleration will also automatically be due and payable and shall constitute part of the Obligations with respect to the Loans, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any such Make-Whole Premium payable shall be presumed to be the liquidated damages sustained by each Lender as the result of the early prepayment and each of the Loan Parties agrees that it is reasonable under the circumstances currently existing. Each of the Loan Parties expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the foregoing amounts in connection with any such acceleration, any rescission of such failure;acceleration or the commencement of any proceeding under the Debtor Relief Laws. Each of the Loan Parties expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Make-Whole Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Make-Whole Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay such Make-Whole Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Each of the Loan Parties expressly acknowledges that its agreement to pay such Make-Whole Premium to Lenders as herein described is a material inducement to Lenders to enter into this Agreement.
Appears in 1 contract
Samples: Subordinated Credit Agreement (F45 Training Holdings Inc.)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or Note or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as on the same shall become due and payabledate on which such payment is due, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(bii) any payment of interest on any Loan such Loan, Note or any fee reimbursement obligation or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement due hereunder or any other Loan Document shall not be paid, when and as paid within five calendar days following the same shall become due and payable, and date on which such failure shall continue unremedied for a period payment of five Business Days;interest or such other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower any Obligor herein, at the direction of the Borrower any Obligor or by any Loan Party Obligor in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;; or
(dc) the Borrower any Obligor Party shall fail to perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII (other than Section 8.09(b)) or fail to give any notice required by Section 7.01(d)(ii); or
(d) any Obligor Party shall fail to give any notice required by Section 7.01(c), 7.01(d)(i), 7.01(d)(iii), 7.01(d)(iv) or 7.01(f) and, in Article VI;any event, such failure shall remain unremedied for five Business Days after the earlier to occur of (i) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) any Loan Obligor Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(b), 9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor Party of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender Lender) and (ii) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(f) any Obligor or any of its Subsidiaries (i) fails to make (whether as primary obligor or as guarantor or other surety) any principal payment of or interest or premium, if any, on any Indebtedness (other than Indebtedness outstanding under this Agreement) beyond any period of grace provided with respect thereto, provided that the aggregate amount of all Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $100,000,000, or (ii) defaults under any agreement or any instrument which governs the rights and remedies of Persons holding Indebtedness of any Obligor or any of its Subsidiaries with an aggregate principal amount equal to or exceeding $100,000,000, in each case, if the effect thereof is to result in such Indebtedness becoming due prior to its scheduled maturity, or to permit the holder or holders of such Indebtedness, or any trustee or agent acting on its or their behalf, to cause such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance of such Indebtedness, prior to its schedule maturity; or
(g) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of any Obligor or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging any Obligor or any Material Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any Obligor or any Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of any Obligor or any Material Subsidiary of any substantial part of its property, or ordering the winding up or liquidation of its affairs; or
(h) the commencement by any Obligor or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Obligor or any Material Subsidiary to the entry of a decree or order for relief in respect of such Obligor or such Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by any Obligor or any Material Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by any Obligor or any Material Subsidiary to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of such Obligor or such Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the consent to, approval of or the admission by any Obligor or any Material Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate or other action by any Obligor or any Material Subsidiary in furtherance of any such action; or
(i) a judgment or order for monetary damages shall be entered against any Obligor or any Material Subsidiary, which with other outstanding judgments and orders for monetary damages entered against the Obligors and the Material Subsidiaries equals or exceeds $100,000,000 in the aggregate (to the extent not covered by independent third-party insurance as to which the respective insurer is financially sound and has not disputed coverage), and (i) within 60 days after entry thereof such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) any enforcement proceeding shall have been commenced (and not stayed) by any creditor upon such judgment; provided that if such judgment or order provides for any Obligor or any Material Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (i) if such Obligor or such Material Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches during such 30-day period and no enforcement proceeding is commenced by any creditor for payment of such judgment or order during such 30-day period); or
(j) other than as a result of (i) a transaction permitted by the terms of Section 8.02, (ii) a Responsible Officer the termination of the Borrower becomes aware obligations of WII under the Guaranty Agreement pursuant to the terms thereof or (iii) the expiration or termination of the Commitments, the payment in full of the principal and interest on each Loan and all fees payable hereunder, the expiration or termination of all Letters of Credit (other than Extended Expiration Letters of Credit) and the reimbursement of all LC Disbursements, any Loan Document shall (other than with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and effect in any material respect, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(k) any Plan shall have failed to meet the minimum funding standard under Section 430 of the Code or Section 303 of ERISA, or a waiver of the minimum funding standard is sought under Section 412 of the Code with respect to a Plan, and either the failure to meet such minimum funding standard or a failure to obtain such a waiver, as applicable, would reasonably be expected (individually or collectively) to have a Material Adverse Effect; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate which (individually or collectively) would reasonably be expected to have a Material Adverse Effect; or WIL-Switzerland, any of its Consolidated Subsidiaries or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified WIL-Switzerland or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there shall result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) WIL-Switzerland, any of its Subsidiaries and/or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to have a Material Adverse Effect; then, and in every such event (other than an event with respect to any Obligor described in clause (g) or (h) of this Section 9.01), and at any time thereafter during the continuance of such failure;event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Obligor described in clause (g) or (h) of this Section 9.01, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors.
Appears in 1 contract
Samples: Credit Agreement (Weatherford International Ltd./Switzerland)
Events of Default and Remedies. Section 8.01. If any of the following events (“herein called "Events of Default”") shall occur and be continuing:happen,
(a) if the principal of Company fails to make any Loan payment required by Section 4.01 (a) or any reimbursement obligation in respect of any LC Disbursement shall not be paid (c) hereof when and as the same shall become due and payable, whether at except, in the case of any payment under subsection (a) of Section 4.01 hereof corresponding to interest on the Bonds, the Company shall not be in default if such payment is made within three (3) days following the due date thereof or at a date fixed for prepayment thereof or otherwise;thereof; or
(b) any interest on any Loan or any fee or if the Company fails to pay any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, payment required hereby and such failure shall continue unremedied continues for a period of five Business Days;30 days after the Authority or the Trustee gives notice that such other payment is due and unpaid; or
(c) if the Company fails to perform any representation of its other covenants or warranty made orconditions or fails to perform any of its obligations hereunder and such failure continues for 30 days after the Authority or the Trustee gives the Company written notice thereof; provided, for purposes of Article IIIhowever, deemed made that if such performance requires work to be done, actions to be taken, or conditions to be remedied, which by their nature cannot reasonably be done, taken or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmedremedied, as the case may be;, within such 30 day period, no Event of Default shall be deemed to have occurred or to exist if, and so long as, the Company shall commence such performance within such 30 day period and shall diligently and continuously prosecute the same to completion; or
(d) if the Borrower shall fail to observe Company commits any act of bankruptcy under Federal or perform any covenant, condition state bankruptcy laws or agreement contained in Section 5.01(d)(i), 5.02 (with respect laws providing for reorganization or relief for debtors or files or has filed against it a petition of bankruptcy or for arrangement or for reorganization pursuant to the Borrower’s existence) Federal Bankruptcy Code or 5.07 other similar laws, Federal or state, or if, by the decree of a court of competent jurisdiction, it is adjudicated bankrupt or declared insolvent, or makes an assignment for the benefit of creditors, or admits in Article VI;writing its inability to pay its debts generally when or as they become due, or consents to the appointment of a trustee, receiver or liquidation of all or any part of the Company or any of its facilities or the Project Fa-
(e) the occurrence of an Event of Default under the Indenture. then and at any Loan Party time thereafter while such Event of Default is continuing, the Authority may in addition to its other remedies at law or equity or provided for in this Sublease, with the consent of the Bank by notice to the Company specifying the Event of Default, terminate this Sublease. Anything in this Sublease to the contrary notwithstanding, if, the Trustee under the Indenture shall, pursuant to Section 10.02 thereof, declare the principal of the then Outstanding Bonds immediately due and payable then there shall fail become immediately due and payable hereunder as then current damages of the Authority under this Sublease an amount equal to perform all amounts then due and payable by the Authority under said Section 10.02 of the Indenture. Until said amount is paid by the Company at the time or observe times and in the manner required to permit the Authority to meet its obligations pursuant to the Indenture, the Authority shall continue to have all of the rights, powers and remedies herein set forth, and, for such time as may be necessary to enable the Authority to satisfy in full its obligations under the Indenture, the term of this Sublease shall be extended as a tenancy at the will of the Authority, and the Company's obligations hereunder shall continue in full force and effect.
Section 8.02. If this Sublease is terminated under Section 8.01,
(a) such termination shall not relieve the Company of previously accrued obligations under the Sublease; and
(b) the Company shall peaceably surrender the Premises failing which, the Authority shall have the right to enter upon and repossess the Premises by force, ejectment or otherwise; and
(c) the Authority may relet any or all of the Premises on such terms as it elects, but the Authority shall not be liable for any failure to relet or to collect any rent due upon reletting; and
(d) thereafter, as liquidated current damages for its default, the Company shall pay to the Authority, on the dates on which payments required Additionally, it is understood that in determining "net proceeds" the Authority shall deduct from all sums collected amounts equal to all charges, expenses or commissions reasonably incurred in collecting such sums and/or operating and administering the Project Facilities.
Section 8.03. In case of any proceeding of the Authority:
(1) to foreclose or terminate the estate or interest of the Company, based upon a default hereunder (if the Authority shall elect so to proceed); or
(2) wherein appointment of a receiver may be permissible, the Authority, as a matter of right and immediately upon institution of each proceeding, upon written notice to the Company, shall be entitled to appointment of a receiver of the Premises with such powers as the court making such appointment can confer; subject, however, to limitations and restrictions of the Act.
Section 8.04. As part of the consideration for the Sublease, the Company hereby waives any applicable exemption laws now or hereafter in force. No failure by either party to insist upon strict performance hereof or to exercise any remedy upon the occurrence of an Event of Default shall constitute a waiver of such default, or a waiver or modification of any provision hereof. Upon the occurrence of an Event of Default, the Authority may exercise any one or more of the remedies available to it separately or concurrently and as often as required to enforce the Company's obligations. In addition to the other remedies provided herein, the Authority shall be entitled to the restraint by injunction of the violation, or attempted or threatened violation by the Company of any of the covenants, conditions or provisions hereof, or to a decree compelling specific performance of any of such covenants, conditions or provisions.
Section 8.05. With respect to any amounts payable by the Company to the Authority hereunder, the Authority shall have, in addition to any other termrights and remedies, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower same rights and remedies as are provided by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;law and in
Appears in 1 contract
Samples: Sublease and Security Agreement (Sterigenics International Inc)
Events of Default and Remedies. 2.1 If any one or more of the following events (“Events of Default”) Default shall occur and be continuinghappen, that is to say:
(a) if (i) default shall be made in the principal payment of any Loan interest due under the Note, or any reimbursement obligation in respect the payment of any LC Disbursement shall not be paid when and as installment of principal due under the same shall become due and payableNote, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paideither such case, when and as the same shall become due and payable, and such failure default shall continue unremedied have continued for a period of five Business Days;(5) days or (ii) default shall be made in any other payment of the principal of the Note, when and as the same shall become due and payable, whether at maturity or by acceleration or as part of any prepayment or otherwise, in each case, as in the Note and this Mortgage provided or (iii) default in the payment of any other Indebtedness due to Mortgagee under this Mortgage and such default shall have continued for a period of five (5) days after written notice thereof, or (iv) default shall be made in the payment of any tax required by Section 1.7 to be paid and said default shall have continued for a period of five (5) days after written notice thereof; provided, however, that if Mortgagor, within any twelve (12) month period, shall fail to make more than two (2) such payments by their due dates, said five (5) day period shall become null and void and of no further force or effect and failure to make payment shall become an immediate Event of Default, or
(b) if default shall be made in the due observance or performance of any covenant or agreement on the part of the Mortgagor contained in Section 1.1, 1.3, 1.8, or 1.9, and such default shall have continued for a period of thirty (30) days after written notice thereof shall have been given to the Mortgagor by Mortgagee. For the purposes of this clause if any representation made in Section 1.1 shall be incorrect, it shall be deemed to be a default; or
(c) if default shall be made in the due observance or performance of any representation other covenant or warranty made or, for purposes of Article III, deemed made by or condition on behalf the part of the Borrower hereinMortgagor in the Note, at the direction Loan Agreement or in this Mortgage contained, and such default shall have continued for a period of thirty (30) days after written notice specifying such default and demanding that the same be remedied shall have been given to the Mortgagor by Mortgagee; provided, however, that if, in Mortgagee’s sole judgment, said failure to comply is not capable of being cured within said thirty (30) day period and is not curable by the payment of money, then the Mortgagor shall have such additional time as Mortgagee deems reasonably necessary to cure such failure (but in no event will such additional time exceed ninety (90) days after the initial notice of such default) provided that (i) Mortgagor promptly proceeds to commence curing said failure to comply upon receipt of notice of said failure from Mortgagee, (ii) in the sole judgment of Mortgagee, Mortgagor thereafter diligently and continuously proceeds to cure said failure so as to cure said failure in the shortest time possible, (iii) such additional time to cure does not materially impair any rights and/or remedies of Mortgagee and will not adversely affect the completion of the Borrower or Improvements by any Loan Party in any other Loan Document or in any documentthe Completion Date and (iv) the Mortgagor furnishes to Mortgagee, certificate or financial statement delivered in connection upon demand of Mortgagee, such documents and information with this Agreement or any other Loan Document shall prove respect to have been incorrect in any material respect when made or deemed made or reaffirmedMortgagor’s curing of said failure to comply, as the case Mortgagee may be;reasonably request; or
(d) if by the Borrower order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property, or any part thereof, or of the Mortgagor shall be appointed and such order shall not be discharged or dismissed within ninety (90) days after such appointment; or
(e) if the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Mortgagor or of any substantial part of its property, or if the Mortgagor shall make any general assignment for the benefit of creditors, or if the Mortgagor shall fail generally to pay its debts as such debts become due, or if the Mortgagor shall take any action in furtherance of any of the foregoing; or
(f) if any of the creditors of the Mortgagor shall commence against the Mortgagor an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect and if such case shall not be discharged or dismissed within ninety (90) days after the date on which such case was commenced; or
(g) if final judgment for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Mortgagor and the Mortgagor shall not discharge the same or cause it to be discharged within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; or
(h) except with respect to the Other Mortgages, if any sale, conveyance, transfer, pledge or further encumbrance, by operation of law or otherwise, of all or any part of the Mortgaged Property, of any interest therein, or in the event of any change in the ownership or composition of Mortgagor, or any further assignment of rents from the Mortgaged Property (except for the Other Mortgages), or any lease of all or substantially all of the Mortgaged Property (except for the Master Lease, the Residential Leases and the Leases), the Premises or the Improvements, shall occur, without the prior written consent of Mortgagee; or
(i) if Mortgagor shall fail to observe maintain its legal existence in good standing in its state of formation; or
(j) if the Mortgagor defaults beyond any applicable notice and cure periods under any other agreement with Mortgagee; or
(k) if any easement over, across, under or perform otherwise affecting the Mortgaged Property or any portion thereof shall be granted or released without Mortgagee’s prior written consent or if there shall be a default by Mortgagor under any easement, covenant or restriction affecting the Premises or any portion thereof or if any easement in favor of the Premises or any portion thereof shall be terminated or modified; or
(l) except with respect to the Other Mortgages, if Mortgagor shall assign any lease or the rents from any lease for all or a part of the Premises other than the Other Mortgages, without the prior written consent of Mortgagee, or shall enter into, amend, extend, renew, abridge or otherwise modify, any lease, or shall cancel or consent to the cancellation or surrender of any lease unless in the ordinary course and in accordance with reasonably prudent management practice, or shall in any other manner materially impair the security of Mortgagee for the payment of the debt secured by this Mortgage; or
(m) if Mortgagor incurs any additional indebtedness, with the exception of the Loan and trade payables customarily incurred in the ordinary course of business without the prior written consent of Mortgagee; or
(n) if the Mortgaged Property or any material part thereof shall be condemned; or
(o) if any material adverse change in the Mortgagor, any Guarantor, or the Mortgaged Property shall occur; or
(p) if any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property commences an action or proceeding against the Mortgagor, the Mortgaged Property or any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property and such action or proceeding shall be finally determined in a manner that adversely affects Mortgagee’s rights, remedies and/or position hereunder, then and in every such case:
(I) During the continuance of any such Event of Default, Mortgagee, by written notice given to the Mortgagor, may declare the entire principal of the Note then outstanding (if not then due and payable), and all accrued and unpaid interest thereon together with all other Indebtedness, to be due and payable immediately, and upon any such declaration the principal of the Note, said accrued and unpaid interest thereon and all other Indebtedness shall become and be immediately due and payable, anything in the Note, in this Mortgage or in the Loan Agreement to the contrary notwithstanding;
(II) During the continuance of any such Event of Default, Mortgagee personally, or by its agents or attorneys, may enter into and upon all or any part of the Premises, and each and every part thereof, and may exclude the Mortgagor, its agents and servants wholly therefrom; and having and holding the same, may use, operate, manage and control the Premises and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, Mortgagee, at the expense of the Mortgaged Property, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid, may complete the construction of the Improvements and in the course of such completion may make such changes in the contemplated Improvements as it may deem desirable and may insure the same; and likewise, from time to time, at the expense of the Mortgaged Property, Mortgagee may make all necessary or proper repairs, renewals and replacements and such useful alterations, additions, betterments and improvements thereto and thereon as to it may seem advisable; and in every such case Mortgagee shall have the right to manage and operate the Mortgaged Property and to carry on the business thereof and exercise all rights and powers of the Mortgagor with respect thereto either in the name of the Mortgagor or otherwise as it shall deem best; and Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof, all of which shall for all purposes constitute property of the Mortgagor; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments and improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Mortgaged Property, or any part thereof, as well as just and reasonable compensation for the services of Mortgagee and for all attorneys, counsel, agents, clerks, servants and other employees by it properly engaged and employed, Mortgagee shall apply the moneys arising as aforesaid, first, to the payment of the principal of the Note and the interest thereon, when and as the same shall become payable and second, to the payment of any other Indebtedness and sums required to be paid by the Mortgagor under this Mortgage;
(III) Mortgagee, with or without entry, personally or by its agents or attorneys, insofar as applicable, may:
(1) [Reserved]
(2) institute proceedings for the complete or partial foreclosure of this Mortgage; or
(3) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement contained in Section 5.01(d)(ithe Note or in the Loan Agreement or in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect.
(IV) Mortgagee also shall have such other rights and/or remedies provided to a mortgagee and/or secured party by the Uniform Commercial Code, as that model statute is enacted and in effect in the jurisdiction wherein the Premises are situated.
(a) Mortgagee may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Mortgagee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by Mortgagee under or by virtue of this Article II, Mortgagee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold and shall execute and deliver to the appropriate governmental authority any affidavit, instrument, document and/or filing required pursuant to any applicable statute, ordinance, rule and/or regulation. Mortgagee is hereby irrevocably appointed the true and lawful attorney of the Mortgagor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose Mortgagee may execute all necessary instruments of conveyance, assignment and transfer, including, without limitation, any affidavit, instrument, document or filing required pursuant to any applicable statute, rule or regulation and may substitute one or more persons with like power, the Mortgagor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Nevertheless the Mortgagor, if so requested by Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the reasonable judgment of Mortgagee, for that purpose, and as may be designated in such request. Any such sale or sales made under or by virtue of this Article II, whether made under the power of sale herein granted or under or by virtue of judicial proceedings of sale, herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof, from, through or under the Mortgagor. In addition, Mortgagor expressly agrees that any powers of attorney executed by Mortgagor subsequent to the date hereof shall expressly state that the power of attorney provided for in this Mortgage shall continue to be in full force and effect until terminated in accordance with the terms of this Mortgage.
(c) In the event of any sale made under or by virtue of this Article II (whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale), 5.02 (with respect the entire principal of, and interest on, the Note, if not previously due and payable, and all other sums required to be paid by the Mortgagor pursuant to this Mortgage, immediately thereupon shall, anything in the Note or in this Mortgage to the Borrower’s existence) or 5.07 or in Article VI;contrary notwithstanding, become due and payable.
(ed) The purchase money, proceeds or avails of any Loan Party shall fail to perform sale made under or observe by virtue of this Article II, together with any other termsums which then may be held by Mortgagee under this Mortgage, covenant whether under the provisions of this Article II or agreement contained in this Agreement (other than those specified in Section 7.01(a)otherwise, Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;be applied as follows:
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Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (BRT Realty Trust)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on or any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower herein or by any Loan Credit Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) (i) the Borrower Company shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01(c)(i), 5.02 (with respect to the BorrowerCompany’s existence) or 5.07 or in Article VI;; (ii) ETP shall fail to observe or perform any covenant contained in Section 6.03 of the ETP Credit Agreement as incorporated by reference into the ETP Guaranty or contained in Article VII of the ETP Credit Agreement as incorporated by reference into Article VII of the ETP Guaranty; (iii) KMEP shall fail to observe any covenant contained in Article VI of the KMEP Credit Agreement as incorporated by reference into Article VI of the KMEP Guaranty; or (iv) any other Guarantor shall fail to observe or perform any negative covenant contained in its Guaranty (by incorporation or otherwise),
(e) any Loan Credit Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Loan Document to which it is a party (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower such Credit Party by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower such Credit Party becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) any Credit Party or any of its Subsidiaries fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or in any Guaranty) or any payment in respect of any Hedging Agreement beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds the Threshold Amount for such Credit Party, or (ii) any Credit Party or any of its Subsidiaries fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, or any event or condition specified in any such agreement or instrument shall occur and be continuing, if such failure, event or condition, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds the Threshold Amount for such Credit Party; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Party or any of its Material Subsidiaries or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or any of its Material Subsidiaries or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) any Credit Party or any of its Material Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Credit Party or any such Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) any Credit Party or any of its Material Subsidiaries shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of its Threshold Amount shall be rendered against any Credit Party, any of its Subsidiaries or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Credit Party or any of its Subsidiaries to enforce any such judgment;
(k) any member of the ERISA Group of which any Credit Party or any of its Subsidiaries is a part shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of such ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of such ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
(l) any Credit Party or any Affiliate of any Credit Party shall petition or apply for or obtain any order restricting payment by any Issuing Bank under any Letter of Credit or extending such Issuing Bank’s liability under such Letter of Credit beyond the expiration date stated therein or otherwise agreed to by such Issuing Bank; or
(m) any Loan Document, at any time after its execution and delivery and for any reason other than the agreement or action (or omission to act) of the Lenders or satisfaction in full of all the Obligations ceases to be in full force and effect or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any material respect; or any Credit Party party thereto denies in writing that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind the same; then, and in any such event, and at any time thereafter, if any such Event of Default shall then remain uncured in accordance with the terms (including the permitted time periods) of the Guaranties, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by notice (including notice sent by telecopy) to the Credit Parties (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Company (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to any Credit Party or any of its Material Subsidiaries, the result of which would occur upon the giving of a Notice of Default as specified in clauses (i), (ii) and (v) below, shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued Facility Fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of notice to the beneficiary or otherwise); and (v) direct the Company to comply, and the Company agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.06(j).
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Events of Default and Remedies. If any of the following events (each an “Events Event of Default”) shall occur and be continuing:
(a) the The Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become becomes due and payable, whether at ; or the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) Borrower shall fail to pay any interest on any Loan or any fee or make any other amount (payment of fees or other than an amount referred to in clause (a) of this Article) amounts payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as Note within five Business Days after the same shall become becomes due and payable, and such failure shall continue unremedied for a period of five Business Days;; or
(cb) any Any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of herein or by the Borrower (or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered of its officers) in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;made; or
(di) the The Borrower shall fail to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.01(d)(i)Sections 5.04, 5.02 (with respect to the Borrower’s existence) 5.08, 5.10 or 5.07 5.12 or in Article VI;
, or (eii) any Loan Party the Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) on its part to be performed or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, observed if such failure pursuant to this clause (ii) shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower by the Administrative Agent or any Lender Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than (i) by a regularly scheduled required prepayment or redemption or (ii) a Responsible Officer prepayment or redemption required solely as a result of the proceeds of such Debt not having been applied to consummate a transaction or toward any other purpose for which such Debt was incurred), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) One or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against the Borrower, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower becomes aware or any Material Subsidiary to enforce any such judgment; or
(i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Voting Stock of the Borrower representing 30% or more of the combined voting power of all Voting Stock of the Borrower; or (ii) during any period of up to 24 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such failure24-month period were directors of the Borrower shall cease for any reason (other than due to death or disability) to constitute a majority of the board of directors of the Borrower (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of the Borrower, (y) nominated for election by a majority of the remaining members of the board of directors of the Borrower and thereafter elected as directors by the shareholders of the Borrower or (z) whose election or nomination was approved by a majority of the remaining members of the board of directors of the Borrower); or
(h) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $100,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or
(i) Any representation or warranty contained in Section 3.01(k) is or becomes false or misleading at any time. then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, the Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall (x) not be covered by insurance and (y) remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(k) a Change in Control shall occur;
(l) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect; then, and in any such event, and at any time thereafter (but for the avoidance of doubt, in each case, not prior to the Closing Date, it being acknowledged and agreed by the parties hereto that the absence of any Default or Event of Default shall not be a condition precedent to the occurrence of the Closing Date) if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy or electronic
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Events of Default and Remedies. 2.1 If any one or more of the following events (“Events of Default”) Default shall occur and be continuinghappen, that is to say:
(a) if (i) default shall be made in the principal payment of any Loan interest due under the Note, or any reimbursement obligation in respect the payment of any LC Disbursement shall not be paid when and as installment of principal due under the same shall become due and payableNote, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paideither such case, when and as the same shall become due and payable, and such failure default shall continue unremedied have continued for a period of five Business Days;(5) days or (ii) default shall be made in any other payment of the principal of the Note, when and as the same shall become due and payable, whether at maturity or by acceleration or as part of any prepayment or otherwise, in each case, as in the Note and this Mortgage provided or (iii) default in the payment of any other Indebtedness due to any Mortgagee under this Mortgage and such default shall have continued for a period of five (5) days after written notice thereof, or (iv) default shall be made in the payment of any tax required by Section 1.7 to be paid and said default shall have continued for a period of five (5) days after written notice thereof; provided, however, that if Mortgagor, within any twelve (12) month period, shall fail to make more than two (2) such payments by their due dates, said five (5) day period shall become null and void and of no further force or effect and failure to make payment shall become an immediate Event of Default, or
(b) if default shall be made in the due observance or performance of any covenant or agreement on the part of the Mortgagor contained in Section 1.1, 1.3, 1.8, or 1.9, and such default shall have continued for a period of thirty (30) days after written notice thereof shall have been given to the Mortgagor by Mortgagees. For the purposes of this clause if any representation made in Section 1.1 shall be incorrect, it shall be deemed to be a default; or
(c) if default shall be made in the due observance or performance of any representation other covenant or warranty made or, for purposes of Article III, deemed made by or condition on behalf the part of the Borrower hereinMortgagor in the Note, at the direction Loan Agreement or in this Mortgage contained, and such default shall have continued for a period of thirty (30) days after written notice specifying such default and demanding that the same be remedied shall have been given to the Mortgagor by Mortgagees; provided, however, that if, in Mortgagees’ sole judgment, said failure to comply is not capable of being cured within said thirty (30) day period and is not curable by the payment of money, then the Mortgagor shall have such additional time as Mortgagees deem reasonably necessary to cure such failure (but in no event will such additional time exceed ninety (90) days after the initial notice of such default) provided that (i) Mortgagor promptly proceeds to commence curing said failure to comply upon receipt of notice of said failure from Mortgagees, (ii) in the sole judgment of Mortgagees, Mortgagor thereafter diligently and continuously proceeds to cure said failure so as to cure said failure in the shortest time possible, (iii) such additional time to cure does not materially impair any rights and/or remedies of Mortgagees and will not adversely affect the completion of the Borrower or Improvements by any Loan Party in any other Loan Document or in any documentthe Completion Date and (iv) the Mortgagor furnishes to Mortgagees, certificate or financial statement delivered in connection upon demand of Mortgagees, such documents and information with this Agreement or any other Loan Document shall prove respect to have been incorrect in any material respect when made or deemed made or reaffirmedMortgagor’s curing of said failure to comply, as the case Mortgagees may be;reasonably request; or
(d) if by the Borrower order of a court of competent jurisdiction, a trustee, receiver or liquidator of the Mortgaged Property, or any part thereof, or of the Mortgagor shall be appointed and such order shall not be discharged or dismissed within ninety (90) days after such appointment; or
(e) if the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Mortgagor or of any substantial part of its property, or if the Mortgagor shall make any general assignment for the benefit of creditors, or if the Mortgagor shall fail generally to pay its debts as such debts become due, or if the Mortgagor shall take any action in furtherance of any of the foregoing; or
(f) if any of the creditors of the Mortgagor shall commence against the Mortgagor an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect and if such case shall not be discharged or dismissed within ninety (90) days after the date on which such case was commenced; or
(g) if final judgment for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Mortgagor and the Mortgagor shall not discharge the same or cause it to be discharged within sixty (60) days from the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; or
(h) except with respect to the Other Mortgages, if any sale, conveyance, transfer, pledge or further encumbrance, by operation of law or otherwise, of all or any part of the Mortgaged Property, of any interest therein, or in the event of any change in the ownership or composition of Mortgagor, or any further assignment of rents from the Mortgaged Property (except for the Other Mortgages), or any lease of all or substantially all of the Mortgaged Property (except for the Master Lease, the Leases and the Residential Leases), the Premises or the Improvements, shall occur, without the prior written consent of each Mortgagee; or
(i) if Mortgagor shall fail to observe maintain its legal existence in good standing in its state of formation; or
(j) if the Mortgagor defaults beyond any applicable notice and cure periods under any other agreement with any Mortgagee; or
(k) if any easement over, across, under or perform otherwise affecting the Mortgaged Property or any portion thereof shall be granted or released without each Mortgagee’s prior written consent or if there shall be a default by Mortgagor under any easement, covenant or restriction affecting the Premises or any portion thereof or if any easement in favor of the Premises or any portion thereof shall be terminated or modified; or
(l) except with respect to the Other Mortgages, if Mortgagor shall assign any lease or the rents from any lease for all or a part of the Premises other than the Other Mortgages, without the prior written consent of each Mortgagee, or shall enter into, amend, extend, renew, abridge or otherwise modify, any lease, or shall cancel or consent to the cancellation or surrender of any lease unless in the ordinary course and in accordance with reasonably prudent management practice, or shall in any other manner materially impair the security of any Mortgagee for the payment of the debt secured by this Mortgage; or
(m) if Mortgagor incurs any additional indebtedness, with the exception of the Loan and trade payables customarily incurred in the ordinary course of business without the prior written consent of each Mortgagee; or
(n) if the Mortgaged Property or any material part thereof shall be condemned; or
(o) if any material adverse change in the Mortgagor, any Guarantor, or the Mortgaged Property shall occur; or
(p) if any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property commences an action or proceeding against the Mortgagor, the Mortgaged Property or any person or entity having or claiming an interest in the Mortgagor or the Mortgaged Property and such action or proceeding shall be finally determined in a manner that adversely affects any Mortgagee’s rights, remedies and/or position hereunder, then and in every such case:
(I) During the continuance of any such Event of Default each Mortgagee, by written notice given to the Mortgagor, may declare the entire principal of the Note then outstanding (if not then due and payable), and all accrued and unpaid interest thereon together with all other Indebtedness, to be due and payable immediately, and upon any such declaration the principal of the Note, said accrued and unpaid interest thereon and all other Indebtedness shall become and be immediately due and payable, anything in the Note, in this Mortgage or in the Loan Agreement to the contrary notwithstanding;
(II) During the continuance of any such Event of Default, each Mortgagee personally, or by its agents or attorneys, may enter into and upon all or any part of the Premises, and each and every part thereof, and may exclude the Mortgagor, its agents and servants wholly therefrom; and having and holding the same, may use, operate, manage and control the Premises and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, any such Mortgagee, at the expense of the Mortgaged Property, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid, may complete the construction of the Improvements and in the course of such completion may make such changes in the contemplated Improvements as it may deem desirable and may insure the same; and likewise, from time to time, at the expense of the Mortgaged Property, any such Mortgagee may make all necessary or proper repairs, renewals and replacements and such useful alterations, additions, betterments and improvements thereto and thereon as to it may seem advisable; and in every such case each Mortgagee shall have the right to manage and operate the Mortgaged Property and to carry on the business thereof and exercise all rights and powers of the Mortgagor with respect thereto either in the name of the Mortgagor or otherwise as it shall deem best; and each Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof, all of which shall for all purposes constitute property of the Mortgagor; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, renewals, replacements, alterations, additions, betterments and improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges upon the Mortgaged Property, or any part thereof, as well as just and reasonable compensation for the services of each Mortgagee and for all attorneys, counsel, agents, clerks, servants and other employees by it properly engaged and employed, each such Mortgagee shall apply the moneys arising as aforesaid, first, to the payment of the principal of the Note and the interest thereon, when and as the same shall become payable and second, to the payment of any other Indebtedness and sums required to be paid by the Mortgagor under this Mortgage;
(III) Each Mortgagee, with or without entry, personally or by its agents or attorneys, insofar as applicable, may:
(1) [Reserved]
(2) institute proceedings for the complete or partial foreclosure of this Mortgage; or
(3) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement contained in Section 5.01(d)(ithe Note or in the Loan Agreement or in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as each Mortgagee shall elect.
(IV) Each Mortgagee also shall have such other rights and/or remedies provided to a mortgagee and/or secured party by the Uniform Commercial Code, as that model statute is enacted and in effect in the jurisdiction wherein the Premises are situated.
(a) Each Mortgagee may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, each Mortgagee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by any Mortgagee under or by virtue of this Article II, any such Mortgagee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold and shall execute and deliver to the appropriate governmental authority any affidavit, instrument, document and/or filing required pursuant to any applicable statute, ordinance, rule and/or regulation. Each Mortgagee is hereby irrevocably appointed the true and lawful attorney of the Mortgagor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose the Mortgagee may execute all necessary instruments of conveyance, assignment and transfer, including, without limitation, any affidavit, instrument, document or filing required pursuant to any applicable statute, rule or regulation and may substitute one or more persons with like power, the Mortgagor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Nevertheless the Mortgagor, if so requested by any Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to such Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the reasonable judgment of such Mortgagee, for that purpose, and as may be designated in such request. Any such sale or sales made under or by virtue of this Article II, whether made under the power of sale herein granted or under or by virtue of judicial proceedings of sale, herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof, from, through or under the Mortgagor. In addition, Mortgagor expressly agrees that any powers of attorney executed by Mortgagor subsequent to the date hereof shall expressly state that the power of attorney provided for in this Mortgage shall continue to be in full force and effect until terminated in accordance with the terms of this Mortgage.
(c) In the event of any sale made under or by virtue of this Article II (whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale), 5.02 (with respect the entire principal of, and interest on, the Note, if not previously due and payable, and all other sums required to be paid by the Mortgagor pursuant to this Mortgage, immediately thereupon shall, anything in the Note or in this Mortgage to the Borrower’s existence) or 5.07 or in Article VI;contrary notwithstanding, become due and payable.
(ed) The purchase money, proceeds or avails of any Loan Party shall fail to perform sale made under or observe by virtue of this Article II, together with any other termsums which then may be held by each Mortgagee under this Mortgage, covenant whether under the provisions of this Article II or agreement contained in this Agreement (other than those specified in Section 7.01(a)otherwise, Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;be applied as follows:
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (BRT Realty Trust)
Events of Default and Remedies. If Upon the occurrence of any of the following events (“Events each an "Event of Default”"):
(1) shall occur and be continuing:
the Borrower (a) the shall fail to pay any principal of on any Loan when such amount becomes due in accordance with the terms hereof; or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) shall fail to pay any interest on any Loan or any fee other Obligation within three days of the date when such amount becomes due in accordance with the terms hereof or any other amount thereof; or
(other than an amount referred to in clause 2) the Borrower shall (a) default in the observance or performance of any covenant or agreement set forth in any Loan Document; (b) fail to deliver or cause to be delivered the information, notices or other items specified in this Article) payable by a Loan Party Agreement, or under this Agreement the Note or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;due; or
(c3) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at or in the direction of the Borrower Note or by any Loan Party in any other Loan Document Document, or which is contained in any documentcertificate, certificate document or financial or other statement delivered in connection with this Agreement or any other Loan Document furnished at any time under or in connection herewith or therewith, shall prove to have been incorrect in any material respect when made on or deemed made or reaffirmed, as of the case may bedate made;
(d4) the Case is either dismissed or converted to Chapter 7 of the Code; or
(5) the Agent (a) provides written notice to the Borrower shall fail to observe that an Event of Default (as defined in the Fleet DIP Facility) has occurred and is continuing, or perform (b) without giving notice, exercises a right or remedy available upon the occurrence of an Event of Default (as defined in the Fleet DIP Facility). then, and in any covenantsuch event: (i) the Lender may, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect by written notice to the Borrower’s existence, declare its obligation to make Loans hereunder to be immediately terminated, whereupon such obligation shall immediately terminate, and (ii) or 5.07 or in Article VI;
(e) any Loan Party shall fail to perform or observe any other termthe Lender may, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) by written notice of such failure shall have been given default to the Borrower Borrower, declare the Loans hereunder (with accrued interest thereon) and all other Obligations to be immediately due and payable, and upon the giving of such notice of default, all such amounts immediately shall become due and payable without further demand, notice or protest of any kind; the giving of any such further demand, notice or protest being hereby expressly waived by the Administrative Agent Borrower, and all other Persons directly or any Lender or, (ii) a Responsible Officer indirectly liable for the payment and/or performance of the Borrower becomes aware Obligations; and thereupon, the Lender may proceed to exercise any and all remedies that are provided to it under this Agreement, the Note, the other Loan Documents, applicable law or by order of such failure;the Court.
Appears in 1 contract
Samples: Loan Agreement (Borden Chemicals & Plastics Limited Partnership /De/)
Events of Default and Remedies. If any of the following events (“"Events of Default”") shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the either Borrower herein, at the direction of the either Borrower or by any Loan Party either Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01(e)(i), 5.02 (with respect to the such Borrower’s 's existence) or 5.07 or in Article VI;
(e) any Loan Party either Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the either Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or Article IX) or any payment in respect of any Hedging Agreement beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the Company or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company, or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(i) the General Partner fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all such Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the General Partner fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(j) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
(l) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
(m) either Borrower or any Affiliate of Borrower shall petition or apply for or obtain any order restricting payment by the Issuing Bank under any Letter of Credit or extending the Issuing Bank's liability under such Letter of Credit beyond the expiration date stated therein or otherwise agreed to by the Issuing Bank; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy) to the Company (a "Notice of Default") take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against either Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Company or any Subsidiary, the result of which would occur upon the giving of a Notice of Default as specified in clauses (i), (ii) and (v) below, shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued facility fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by each Borrower; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Company to comply, and the Company agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.06(k).
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) (i) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become such payment is due and payable, (whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
) or Letters of Credit shall not have been cash collateralized in accordance with Section 3.01(k), or (bii) any interest on any Loan or Obligation, any fee or any other amount (other than an amount referred to in clause (ai) of this ArticleSection 9.01(a)) payable by a Loan Party under this Agreement hereunder or any other Loan Document shall not be paidpaid within five (5) Business Days following the date on which the payment of interest, when and as the same shall become due and payable, and fee or such failure shall continue unremedied for a period of five Business Days;other amount is due; or
(cb) any representation or warranty made or, for purposes of Article IIIV, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower Parent or by any Loan Party Subsidiary herein or in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect untrue in any material respect when made (or, to the extent qualified by materiality or reference to Material Adverse Effect, in all respects) as of the date of issuance or making or deemed made or reaffirmed, as the case may be;making thereof; or
(dc) the Borrower any Obligor shall fail to (i) perform or observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i)7.02, 5.02 Section 7.05 (with respect to the Borrower’s existenceexistence of any Obligor) or 5.07 Article VIII, or (ii) fail to give any notice required by Section 7.01(d)(ii); or
(d) (i) any Obligor shall fail to give any notice required by Section 7.01 (other than Section 7.01(d)(ii)) and, in Article VI;any event, such failure shall remain unremedied for five (5) days after the earlier to occur of (A) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (B) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure, or (ii) any Obligor shall fail to perform or observe any covenant or any other agreement contained in Section 7.03, Section 7.04, Section 7.05 (other than with respect to the existence of any Obligor), Section 7.07, Section 7.08 and Section 7.14, and, in any event, such failure shall remain unremedied for fifteen (15) days after the earlier to occur of (I) receipt by a Principal Financial Officer of any Obligor Party of notice of such failure (given by the Administrative Agent or any Lender) and (II) a Principal Financial Officer of any Obligor Party otherwise becoming aware of such failure; or
(e) Parent or any Loan Party Obligor shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a9.01(a), Section 7.01(b9.01(c) or Section 7.01(d9.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier to occur of (i) written receipt by a Principal Financial Officer of any Obligor of notice of such failure shall have been (given to the Borrower by the Administrative Agent or any Lender or, Lender) and (ii) a Responsible Principal Financial Officer of the Borrower becomes any Obligor otherwise becoming aware of such failure; or
(f) there is (i) an event of default with respect to any Material Indebtedness, and such default (A) occurs at the final maturity of the obligations thereunder, or (B) results in a right by the holder of such Material Indebtedness, irrespective of whether exercised, to accelerate the maturity of such Obligor’s or its Restricted Subsidiary’s obligations thereunder, or (ii) an event of default under (A) the Senior Secured Notes Indenture or (B) the Exit Senior Notes Indenture; or
(g) [reserved];
(h) [reserved];
(i) an Insolvency Proceeding is commenced by an Obligor or any of its Material Subsidiaries; or
(j) an Insolvency Proceeding is commenced against an Obligor or any of its Material Subsidiaries and any of the following events occur: (a) such Obligor or such Material Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) calendar days of the date of the filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all or any substantial portion of the business of, such Obligor or its Material Subsidiary, or (e) an order for relief shall have been issued or entered therein; or
(k) a judgment or order for monetary damages shall be entered against any Obligor or any Restricted Subsidiary, which with other outstanding judgments and orders for monetary damages entered against such Obligors and such Restricted Subsidiaries equals or exceeds $65,000,000 in the aggregate (to the extent not covered (other than to the extent of customary deductibles) by insurance as to which the respective insurer has not denied coverage), and (i) within 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal or, within 60 days after the expiration of any such stay, such judgment shall not have been discharged, satisfied, vacated, or bonded pending appeal, or a stay of enforcement thereof is not in effect, or (ii) any enforcement proceeding shall have been commenced (and not stayed) upon any such judgment; provided that if such judgment or order provides for any Obligor or any Restricted Subsidiary to make periodic payments over time, no Event of Default shall arise under this clause (k) if such Obligor or such Restricted Subsidiary makes each such periodic payment when due in accordance with the terms of such judgment or order (or within 30 days after the due date of each such periodic payment, but only so long as no Lien attaches to any assets of an Obligor or Restricted Subsidiary during the period over which such payments are made and no enforcement proceeding is commenced by any creditor for payment of such judgment or order); or
(l) at any time prior to Payment in Full, any Loan Document (other than one or more Collateral Documents intended to grant or perfect a Lien in Collateral with a net book value that does not exceed $5,000,000 in the aggregate under all such Collateral Documents) shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and the Lenders), at any time after its execution and delivery and for any reason, cease to be in full force and/or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by any Obligor or any Obligor shall deny that it has any or further liability or obligation thereunder; or
(m) any Collateral Document shall (other than to the extent permitted by the terms hereof or thereof or with the consent of the Administrative Agent and each of the Lenders), at any time after its execution and delivery and for any reason, fail to create a valid and perfected (or analogous concept to the extent perfection does not apply in the relevant jurisdiction) security interest with the priority set forth in the Intercreditor Agreement, or other Lien in any material portion of the Collateral purported to be covered thereby, except to the extent permitted under this Agreement or with the consent of the Administrative Agent and each Lender, provided that it shall not be an Event of Default if the aggregate net book value of the Collateral with respect to which the Collateral Documents fail to create a valid and perfected security interest or other Lien does not exceed $5,000,000;
(n) an ERISA Event has occurred that would reasonably be expected (individually or collectively) to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000; any proceeding shall have occurred or is reasonably likely to occur by the PBGC under Section 4069(a) of ERISA to impose liability on Parent, any of its Subsidiaries, any Borrower or any ERISA Affiliate which (individually or collectively) would reasonably be expected to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000; or Parent, any of its Subsidiaries, any Borrower or any ERISA Affiliate has incurred or is reasonably likely to incur a liability to or on account of a Plan or Multiemployer Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, or a notice of intent to terminate any Plan in a distress termination shall have been or is reasonably expected to be filed with the PBGC, or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan, or the PBGC shall have notified Parent or any ERISA Affiliate that a Plan may become a subject of any such proceedings, and there would result (individually or collectively) from any such event or events a material risk of either (i) the imposition of a Lien(s) upon, or the granting of a security interest(s) in, the assets of Parent, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate which would reasonably be expected to have a Material Adverse Effect, or (ii) Parent, any of its Subsidiaries and/or any Borrower or any ERISA Affiliate incurring a liability(ies) or obligation(s) with respect thereto which would reasonably be expected to result in payment by the Obligors during the term of this Agreement in excess of $30,000,000;
(o) the provisions of the Intercreditor Agreement shall for any reason (other than termination in accordance with its terms) be revoked or invalidated, or otherwise cease to be in full force and effect and binding under the laws of any applicable Specified Jurisdiction, or Parent or any Subsidiary of Parent shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder;
(p) the obligation of any Guarantor under any Guaranty Agreement is limited in any material respect or terminated by operation of law or by such Guarantor (other than in accordance with the terms of this Agreement or the respective Guaranty Agreement) or if any Guarantor repudiates or revokes or purposes to repudiate or revoke such guaranty;
(q) a Change of Control shall occur, whether directly or indirectly; then, and in every such event (other than an event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j)), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate the Commitments and the LC Commitments, and thereupon the Commitments and the LC Commitments shall terminate immediately, and terminate all obligations of each Issuing Bank to issue, amend or extend any Letter of Credit
(ii) declare the Obligations then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the Obligations so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers;
(iii) require the Borrowers deposit in the LC Collateral Account an additional amount in cash equal to (a) 103% of the Total LC Exposure in respect of Letters of Credit denominated in Dollars plus (b) 105% of the Dollar Equivalent Total LC Exposure in respect of Letters of Credit denominated in Alternative Currencies in accordance with Section 3.01(k). And in case of any event with respect to any Obligor described in Section 9.01(i) or Section 9.01(j), the Commitments shall automatically terminate and all Obligations then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Obligors. In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may, subject to the Intercreditor Agreement, exercise all rights and remedies of a secured party under the New York Uniform Commercial Code or any other applicable law. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Obligor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived by the Borrowers and Parent on behalf of themselves and their respective Subsidiaries), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Obligor of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Obligor, which right or equity is hereby waived and released by the Borrowers and Parent on behalf of themselves and their Subsidiaries. The Borrowers and Parent further agree on behalf of themselves and their Subsidiaries, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the premises of the Borrowers, another Obligor or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this section, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations of the Obligors under the Loan Documents, in such order as the Administrative Agent may elect, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if any, to any Obligor. To the extent permitted by applicable law, the Borrowers and Parent, on behalf of themselves and their Subsidiaries, waive all claims, damages and demands it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
Appears in 1 contract
Samples: Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC)
Events of Default and Remedies. If any (a) Until payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, each of the following events (“Events shall constitute an Event of Default”) shall occur and be continuing:
(ai) the principal of Company or any Loan or any reimbursement obligation in respect of any LC Disbursement Party shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
fail to pay (bi) any interest on any Loan Reimbursement Obligations under Section 2(a)(ii) when due in accordance with the terms of this Agreement, or any fee or (ii) any other amount (other than an amount referred to when due in clause (a) of this Article) payable by a Loan Party under accordance with this Agreement and the other Loan Documents, within three (3) Business Days after any such amount becomes due in accordance with the terms hereof or thereof; or
(ii) any representation, warranty, certification or statement of fact made or deemed made by on or behalf of the Company or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower Party herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, document or certificate or financial statement delivered in connection with this Agreement herewith or any other Loan Document therewith shall prove to have been be incorrect or misleading in any material respect when made or deemed made or reaffirmed, as the case may be;made; or
(diii) the Borrower any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than as provided in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence7(a)(i) or 5.07 7(a)(ii)) and such failure continues unremedied or in Article VI;unwaived for a period of 30 days after the earlier of (i) the date an officer of such Loan Party becomes aware of such default and (ii) the receipt by the Company of notice from the Disbursing Agent or the LC Provider of such default; or
(eiv) any Loan Party shall (A) fail to pay any principal, interest or dividend, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable beyond any applicable grace period in respect thereof; or (B) fail to observe or perform or observe any other term, covenant covenant, agreement or condition relating to any Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holders or beneficiaries of such Material Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) to cause, with or without the giving of notice, the lapse of time or both, such Material Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor; or
(i) a court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any Loan Party under any Debtor Relief Laws now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged; or
(vi) (i) any Loan Party shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party shall make any assignment for the benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7(a)(v); or
(vii) there occurs one or more ERISA Events which has resulted or could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or
(viii) one or more judgments shall be rendered against any Loan Party and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $5,000,000 (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect; or
(ix) (i) the guarantee contained in this Section 2 of the Guarantee and Collateral Agreement for any reason other than termination of the Credit and payment in full in cash of all Reimbursement Obligations, shall cease to be in full force and effect (other than those specified in Section 7.01(a), Section 7.01(baccordance with its terms) or Section 7.01(d)shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Security Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or termination of the Credit and payment in full in cash of all Reimbursement Obligations) or shall be declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien on any material portion of the Collateral purported to be covered by the Security Documents with the priority required by the relevant Security Document, in each case, for any reason other than (x) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Preferred Documents or (y) as a result of the Collateral Agent’s failure to maintain possession of any stock certificates or other instruments actually received by it under the Security Documents, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability under any Loan Document to which it is a party andor shall contest the validity or perfection of any Lien on any Collateral (other than, solely with respect to perfection, any Excluded Perfection Assets) purported to be covered by the Security Documents; or
(x) any Change of Control shall occur; or
(xi) there shall have occurred the termination of, or the receipt by any Loan Party of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Material Agreements of any Loan Party; or
(xii) at any time after the execution and delivery thereof, any Intercreditor Agreement shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared null and void; or
(xiii) there shall have occurred any changes in tariffs or trade conditions applicable to the Loan Parties’ products or businesses that could reasonably be expected to result in a Material Adverse Effect; or
(xiv) no Preferred Shares purchased in the Conversion Transaction by funds affiliated with LC Provider shall remain outstanding.
(b) Upon the occurrence and during the continuance of any Event of Default: (a) on the Business Day following the date on which Company receives written notice from Disbursing Agent (at the written direction of LC Provider) or LC Provider (with a copy to the Disbursing Agent) demanding deposit of cash collateral, Company will deposit into an account established and maintained with a financial institution acceptable to LC Provider (“Collateral Account”) an amount in cash equal to 103% of the undrawn amount and any amounts drawn but not reimbursed of the Credit on such date (in each case as calculated by the LC Provider) and shall execute such other agreements in form and substance satisfactory to LC Provider; provided that the obligation to deposit such cash collateral will become effective immediately, without any demand or notice of any kind, upon the occurrence of an Event of Default under Section 7.01(f7(a)(v), 7(a)(vi) or 7.017(ga) of the Amended Credit Agreement(xiv). Company does hereby grant to LC ProviderCollateral Agent, for the benefit of the Secured Parties, as collateral security for the Reimbursement Obligations and performance by Company of all the terms, covenants and agreements to be performed under this Agreement, a security interest in all of the Company’s right, title and interest in, to and under, whether now or hereafter existing or arising, any such Collateral Account and all amounts on deposit therein, together with all proceeds thereof. LC Provider may assign such security interest to a collateral agent (which may or may not be the Collateral Agent For the avoidance of doubt and notwithstanding anything herein to the contrary, no Agent shall be responsible for, or have any duty to calculate or determine, the amount of any cash to be deposited into any Collateral Account and shall not be responsible for or have any duty to monitor compliance with this Section 7(b) atby any timeparty.
(c) Subject to the Intercreditor Agreement, after demand is made for cash collateralization of the Credit as provided for in Section 7(b), any amounts received on account of the Reimbursement Obligations shall be applied by the Disbursing Agent or the Collateral Agent, as the case may be, in any eventthe following order: first, such failure shall remain unremedied for 30 calendar days after pro rata to payment of that portion of the earlier Reimbursement Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to each Agent) payable to each Agent in its capacity as such; second, to payment of that portion of the Reimbursement Obligations constituting fees, indemnities and other amounts (iother than Reimbursement Obligations and interest) written notice of such failure shall have been given payable to the Borrower LC Provider (including fees, charges and disbursements of counsel to the LC Provider) arising under the Loan Documents; third, to payment of that portion of the Reimbursement Obligations constituting unpaid draws on the Principal Amount and other unpaid Reimbursement Obligations arising under the Loan Documents not paid pursuant to any of the foregoing clauses; and last, the balance, if any, after payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, to the Company or as otherwise required by Requirements of Law. With respect to levels second and third of the Administrative foregoing proceeds waterfall, LC Provider agrees that, upon Disbursing Agent’s or Collateral Agent’s request, it shall promptly confirm to Disbursing Agent or Collateral Agent, as applicable, the Reimbursement Obligations owing to it, and Disbursing Agent or Collateral Agent, as applicable, shall be entitled to conclusively rely on such information in making any Lender or, (ii) a Responsible Officer distributions to LC Provider and shall incur no liability for making distributions in reliance thereon. In furtherance of the Borrower becomes aware of foregoing, in no event shall Disbursing Agent or Collateral Agent be required to distribute any amounts under levels second or third above unless and until LC Provider has provided such failure;information to it.
Appears in 1 contract
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five three Business Days;
(c) any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the either Borrower herein, at the direction of the either Borrower or by any Loan Party either Borrower in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d) the either Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i5.01(e)(i), 5.02 (with respect to the such Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party either Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the either Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a), Section 7.01(b) or Article IX) or any payment in respect of any Hedging Agreement beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the Company or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company, or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(i) the General Partner fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all such Indebtedness as to which such a payment default shall occur and be continuing is equal to or exceeds $75,000,000, or (ii) the General Partner fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $75,000,000; provided that this Section 7.01(j) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
(l) any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
(m) either Borrower or any Affiliate of Borrower shall petition or apply for or obtain any order restricting payment by any Issuing Bank under any Letter of Credit or extending such Issuing Bank’s liability under such Letter of Credit beyond the expiration date stated therein or otherwise agreed to by such Issuing Bank; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy) to the Company (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against either Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Company or any Subsidiary, the result of which would occur upon the giving of a Notice of Default as specified in clauses (i), (ii) and (v) below, shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued facility fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by each Borrower; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Company to comply, and the Company agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.06(k).
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the The Company shall fail to pay any principal of any Term Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become becomes due and payable, whether at ; or the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) Company shall fail to pay any interest on any Term Loan or any fee or make any other amount (payment of fees or other than an amount referred to in clause (a) of this Article) amounts payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as Note within five Business Days after the same shall become becomes due and payable, and such failure shall continue unremedied for a period of five Business Days;; or
(cb) any Any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower Company herein or by the Company (or any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered of its officers) in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;made; or
(di) the Borrower The Company shall fail to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.01(d)(i5.01(d) or (h), 5.02 or 5.03, or (with respect to ii) the Borrower’s existence) or 5.07 or in Article VI;
(e) any Loan Party Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) on its part to be performed or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, observed if such failure pursuant to this clause (ii) shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure thereof shall have been given to the Borrower Company by the Administrative Agent or any Lender Lender; or
(d) The Company or any of its Material Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Company or such Material Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than (i) by a regularly scheduled required prepayment or redemption or (ii) a Responsible Officer prepayment or redemption required solely as a result of the Borrower becomes aware proceeds of such failureDebt not having been applied to consummate a transaction or toward any other purpose for which such Debt was incurred), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Company or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Company or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Company or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) One or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against the Company, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Material Subsidiary to enforce any such judgment; or
(g) (i) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Voting Stock of the Company representing 30% or more of the combined voting power of all Voting Stock of the Company; or (ii) during any period of up to 24 consecutive months, commencing after the date of this Agreement, individuals who at the beginning of such 24-month period were directors of the Company shall cease for any reason (other than due to death or disability) to constitute a majority of the board of directors of the Company (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of the Company, (y) nominated for election by a majority of the remaining members of the board of directors of the Company and thereafter elected as directors by the shareholders of the Company or (z) whose election or nomination was approved by a majority of the remaining members of the board of directors of the Company); or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $100,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Company or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Company, if prior to the Term Loan Funding Date, declare the obligation of each Lender to make Term Loans to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Company, declare the Term Loans, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Term Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company under the Federal Bankruptcy Code, (A) if prior to the Term Loan Funding Date, the obligation of each Lender to make Term Loans shall automatically be terminated and (B) the Term Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
