EVENTS OF DEFAULT Events of Default. If any of the following events (any such event, an “Event of Default”) shall occur: (a) any Loan Party shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement 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 Loan Party shall fail to pay any interest on any Loan or any interest on any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section 7.01) payable under any Loan Document, 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 deemed made by or on behalf of the Borrower or any of the Subsidiary Loan Parties in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or, if such representation or warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language, in any respect) when made or deemed made; (d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), Section 5.04 (with respect to the existence of the Borrower), Section 5.10 or in Article VI; (e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section 7.01), and such failure shall continue unremedied for a period of 30 days after the earlier of (i) the date upon which the Administrative Agent has given the Borrower written notice of such failure or (ii) the date on which any Responsible Officer of any Loan Party acquires actual knowledge of such failure; (f) the Borrower or any of the Restricted Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than any Material Indebtedness that is owed to the Borrower and/or any Restricted Subsidiary and other than the Loan Document Obligations) when and as the same shall become due and payable (after giving effect to any applicable grace period); provided that this clause (f) shall not apply to any breach or default that is (i) remedied by the Borrower or the applicable Restricted Subsidiary or (ii) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in the case of (i) and (ii), prior to the acceleration of Loans pursuant to this Section 7.01; (g) any breach or default by the Borrower or any of the Restricted Subsidiaries with respect to any other term of any Material Indebtedness described in the foregoing clause (f), but solely to the extent the effect of such breach or event of default is to cause, or to permit (with all applicable grace periods having expired) the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable (or mandatorily redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section 7.01 will apply to any failure to make any payment required as a result of any such termination or similar event); provided further, that such failure is unremedied and is not validly waived by the holders of such Indebtedness in accordance with the terms of the documents governing such Indebtedness prior to any termination of the Revolving Commitments or acceleration of the Loans pursuant to this Section 7.01; (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a material 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, examiner, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; (i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, 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 paragraph (h) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors; (j) entry or filing of one or more final money judgments, writs or warrants of attachment against the Borrower or any of the Restricted Subsidiaries (or any combination thereof) or any assets of such Person in an aggregate amount in excess of $10.0 million (excluding (i) amounts paid or covered by insurance (including self-insurance) or indemnity as to which the insurer or indemnifying party, as applicable, has been notified of such judgment, writ or warrant and has not disputed or otherwise contested in writing such insurance coverage or indemnification obligation, as applicable, and (ii) amounts escrowed pursuant to the definitive documentation for any Permitted Acquisition, any Investment permitted hereunder or any Disposition permitted hereunder, in each case, to the extent available to the Borrower or such Restricted Subsidiary for payment of such liabilities), which such judgment, writ or warrant remains undischarged for a period of 60 consecutive days (except to the extent that the terms of such judgment, writ or warrant specifically provide for a longer payment term and the Borrower or such Restricted Subsidiary, as applicable, timely discharges or satisfies such obligations during such specified longer term); (k) an ERISA Event occurs, either alone or together with all other ERISA Events, that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect; (l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, 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, (ii) as a result of the Administrative Agent’s failure to (A) maintain possession of any physical Collateral delivered to it under the Security Documents or (B) file UCC (or equivalent) continuation statements, (iii) as to Collateral consisting of real property to the extent (x) that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage and (y) such deficiency arose through no fault of the Loan Parties, and such deficiency is corrected with reasonable diligence upon obtaining actual knowledge thereof, (iv) the occurrence of the Termination Date or the termination of such Security Document in accordance with the terms thereof, or (v) as a result of acts or omissions of the Administrative Agent or any Lender; (m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted in writing by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date); (n) any material Guarantees of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date); or (o) a Change of Control shall occur; then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01), 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 Borrower; and in case of any event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01, 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
Samples: Credit Agreement (Zix Corp)
EVENTS OF DEFAULT Events of Default. If any of the following events (any such event, an “Event Events of Default”) shall occur:
(a) any Loan Party The Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement 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) any Loan Party Borrower shall fail to pay any interest on any Loan or make any interest on any reimbursement obligation in respect other payment of any LC Disbursement fees or other amounts payable under this Agreement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section 7.01) payable under any Loan Document, when and as promissory 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 representation or warranty made or deemed made by or on behalf of the Borrower herein or by any Loan Party (or any of the Subsidiary Loan Parties in or its officers) in connection with this Agreement or in any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (when made; or, if such representation or warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language, in any respect) when made or deemed made;
(di) the Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.03, 5.05, 5.10 or 5.11 or Article VI; provided that any Default under Section 6.13 is subject to cure as provided in Section 7.02 and an Event of Default with respect to Section 6.13 shall not occur until the expiration of the 10th Business Day subsequent to the date the relevant financial statements are required to be delivered for the applicable fiscal quarter pursuant to Section 5.01(a) or Section 5.01(b), as applicable, or (ii) any Loan Party shall fail to perform or observe or perform any covenantother term, condition covenant or agreement contained in Section 5.02(a), Section 5.04 this Agreement or any other Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(d) the Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on (i) any Indebtedness (other than Indebtedness with respect to Swap Contracts) that is outstanding in a principal amount of at least $100,000,000 in the existence of the Borrower), Section 5.10 or in Article VI;
aggregate (e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (bbut excluding Indebtedness outstanding hereunder) or (dii) any Indebtedness with respect to Swap Contracts with a Swap Termination Value of this Section 7.01at least $100,000,000 in the aggregate, of the Borrower or such 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 unremedied for a period of 30 days after the earlier of (i) applicable grace period, if any, specified in the date upon which agreement or instrument relating to such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the Administrative Agent has given applicable grace period, if any, specified in such agreement or instrument, if the Borrower written notice effect of such failure event or (ii) condition is to accelerate, or to permit the date on which any Responsible Officer of any Loan Party acquires actual knowledge acceleration of, the maturity of such failure;Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; or
(fe) the Borrower or any of the Restricted its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than any Material Indebtedness that is owed to the Borrower and/or any Restricted Subsidiary and other than the Loan Document Obligations) when and generally not pay its debts as the same shall such debts become due and payable (after giving effect to any applicable grace period); provided that this clause (f) shall not apply to any breach or default that is (i) remedied by the Borrower or the applicable Restricted Subsidiary or (ii) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in the case of (i) and (ii), prior to the acceleration of Loans pursuant to this Section 7.01;
(g) any breach or default by the Borrower or any of the Restricted Subsidiaries with respect to any other term of any Material Indebtedness described in the foregoing clause (f), but solely to the extent the effect of such breach or event of default is to causedue, or shall admit in writing its inability to permit (with all applicable grace periods having expired) the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable (or mandatorily redeemable) prior to pay its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section 7.01 will apply to any failure to make any payment required as a result of any such termination or similar event); provided further, that such failure is unremedied and is not validly waived by the holders of such Indebtedness in accordance with the terms of the documents governing such Indebtedness prior to any termination of the Revolving Commitments or acceleration of the Loans pursuant to this Section 7.01;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debtsdebts generally, or of a material 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, examiner, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, 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 paragraph (h) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
(j) entry ; or filing of one any proceeding shall be instituted by or more final money judgments, writs or warrants of attachment against the Borrower or any of its 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 Restricted Subsidiaries (entry of an order for relief or any combination thereof) the appointment of a receiver, trustee, custodian or any assets of such Person in an aggregate amount in excess of $10.0 million (excluding (i) amounts paid other similar official for it or covered by insurance (including self-insurance) or indemnity as to which the insurer or indemnifying party, as applicable, has been notified of such judgment, writ or warrant and has not disputed or otherwise contested in writing such insurance coverage or indemnification obligation, as applicable, and (ii) amounts escrowed pursuant to the definitive documentation for any Permitted Acquisition, any Investment permitted hereunder or any Disposition permitted hereundersubstantial part of its property and, in each case, to the extent available to the Borrower or case of any such Restricted Subsidiary for payment of such liabilitiesproceeding instituted against it (but not instituted by it), which either such judgment, writ proceeding shall remain undismissed or warrant remains undischarged unstayed for a period of 60 consecutive days days, or any of the actions sought in such proceeding (except to including, without limitation, the extent that entry of an order for relief against, or the terms appointment of such judgmenta receiver, writ trustee, custodian or warrant specifically provide other similar official for, it or for a longer payment term and any substantial part of its property) shall occur; or the Borrower or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) judgments or orders for the payment of money in excess of $100,000,000 in the aggregate shall be rendered against the Borrower or any of its Subsidiaries and remain undischarged and either (i) enforcement proceedings shall have been commenced by any creditor upon such Restricted Subsidiaryjudgment or order or (ii) there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this clause (f) if and for so long as applicable(i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, timely discharges which shall be a creditworthy insurer not affiliated with the Borrower, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or satisfies such obligations during such specified longer term)order; or
(g) a Change of Control with respect to the Borrower shall occur;
(kh) an ERISA Event occurs, either alone occurs with respect to a Pension Plan or together with all other ERISA Events, that Multiemployer Plan which has resulted or would could reasonably be expected to result in liability of a Material Adverse Effect, or (ii) the Borrower or any Subsidiary in an aggregate amount that would ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan and the failure to make such payment has resulted or could reasonably be expected to result in a Material Adverse Effect;
(li) any provision of any Loan Document shall for any reason cease to be valid and binding on or enforceable in accordance with its terms (other than by reason of the exception set forth in clause (j) below), or the Borrower or any of the Subsidiary Guarantors shall so state in writing;
(j) any Security Document after delivery thereof shall for any reason (other than pursuant to the terms hereof or thereof, including as a result of a transaction not prohibited under this Agreement) cease to create, or any Lien purported to be created under by any Security Document shall cease to be, not be or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, lien with the priority required by the applicable Security DocumentDocuments on and security interest, except (i) as a result in each case in any material portion of the sale Collateral purported to be covered thereby, subject to Liens permitted under Section 6.01 or other disposition any of the applicable Collateral in a transaction permitted under the Loan Documents, (ii) as a result of the Administrative Agent’s failure to (A) maintain possession Equity Interests of any physical Collateral delivered to it under the Security Documents or (B) file UCC (or equivalent) continuation statements, (iii) as to Collateral consisting of real property to the extent (x) that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage and (y) such deficiency arose through no fault of the Loan Parties, and such deficiency is corrected with reasonable diligence upon obtaining actual knowledge thereof, (iv) the occurrence of the Termination Date or the termination of such Security Document in accordance with the terms thereof, or (v) as a result of acts or omissions of the Administrative Agent or any Lender;
(m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted in writing by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date);
(n) any material Guarantees of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement Subsidiary shall cease to be in full force and effect (pledged pursuant to the Security Documents free of Liens other than Liens subject to any Intercreditor Agreement or any nonconsensual Liens arising solely by operation of Law; except in each case, other than in accordance case to the extent that any such loss of perfection or priority results from failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Security Agreement or to file Uniform Commercial Code continuation statements (so long as such failure does not result from the breach or non-compliance with the terms of the Loan Documents or as a result of the occurrence of the Termination Dateby any Loan Party); or
(o) a Change of Control shall occur; then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.017.01(e)), 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 Obligations of the Borrower accrued hereunderhereunder and under the other Loan Documents, shall become due and payable immediately, without 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 paragraph (h) or (i) of this Section 7.017.01(e), 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 Obligations accrued hereunder and under the Borrower accrued hereunderother Loan Documents, 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. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent or the Collateral Agent (in the case of the Security Documents) may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to Administrative Agent or the Collateral Agent (in the case of the Security Documents) under the Loan Documents or at law or equity.
Appears in 1 contract
EVENTS OF DEFAULT Events of Default. If any of the following events (any such event, an “Event of SECTION 7.01 Default”) shall occur:
: (a) any Loan Party shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payablepayable and in the currency required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
; (b) any Loan Party shall fail to pay any interest on any Loan Loan, or any interest on any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section 7.01Section) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days;
; (c) any representation or warranty made or deemed made by or on behalf of Holdings, the Borrower or any of the Subsidiary Loan Parties Restricted Subsidiaries in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or, if such representation or warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language, in any respect) when made or deemed made;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), Section 5.04 (with respect to the existence of the Borrower), Section 5.10 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section 7.01), and such failure shall continue unremedied for a period of 30 days after the earlier of incorrect representation or warranty (i) the date upon which the Administrative Agent has given the Borrower written notice of such failure or (ii) the date on which any Responsible Officer of any Loan Party acquires actual knowledge of such failure;
(f) the Borrower or any of the Restricted Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than any Material Indebtedness that is owed to the Borrower and/or any Restricted Subsidiary and other than the Loan Document Obligations) when and as the same shall become due and payable (after giving effect to any applicable grace period); provided that this clause (f) shall not apply to any breach or default that is (i) remedied by the Borrower or the applicable Restricted Subsidiary or (ii) waived (if curable, including in the form of amendment) by the required holders of the applicable item of Indebtedness, in the case of (i) and (ii), prior to the acceleration of Loans pursuant to this Section 7.01;
(g) any breach or default by the Borrower or any of the Restricted Subsidiaries with respect to any other term of any Material Indebtedness described in the foregoing clause (f), but solely to the extent the effect of such breach or event of default is to cause, or to permit (with all applicable grace periods having expired) the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable (or mandatorily redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events occurring under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section 7.01 will apply to any failure to make any payment required as a result of any such termination or similar event); provided further, that such failure is unremedied and is not validly waived by the holders of such Indebtedness in accordance with the terms of the documents governing such Indebtedness prior to any termination of the Revolving Commitments or acceleration of the Loans pursuant to this Section 7.01;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a material 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, examiner, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, 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 paragraph (h) of this Section 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, examiner, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a material part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors;
(j) entry or filing of one or more final money judgments, writs or warrants of attachment against the Borrower or any of the Restricted Subsidiaries (or any combination thereof) or any assets of such Person in an aggregate amount in excess of $10.0 million (excluding (i) amounts paid or covered by insurance (including self-insurance) or indemnity as to which the insurer or indemnifying party, as applicable, has been notified of such judgment, writ or warrant and has not disputed or otherwise contested in writing such insurance coverage or indemnification obligation, as applicable, and (ii) amounts escrowed pursuant to the definitive documentation for any Permitted Acquisition, any Investment permitted hereunder or any Disposition permitted hereunder, in each case, to the extent available to the Borrower or such Restricted Subsidiary for payment of such liabilities), which such judgment, writ or warrant remains undischarged for a period of 60 consecutive days (except to the extent that the terms of such judgment, writ or warrant specifically provide for a longer payment term and the Borrower or such Restricted Subsidiary, as applicable, timely discharges or satisfies such obligations during such specified longer term);
(k) an ERISA Event occurs, either alone or together with all other ERISA Events, that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect;
(l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, 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, (ii) as a result of the Administrative Agent’s failure to (A) maintain possession of any physical Collateral delivered to it under the Security Documents or (B) file UCC (or equivalent) continuation statements, (iii) as to Collateral consisting of real property to the extent (x) that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage and (y) such deficiency arose through no fault of the Loan Parties, and such deficiency is corrected with reasonable diligence upon obtaining actual knowledge thereof, (iv) the occurrence of the Termination Date or the termination of such Security Document in accordance with the terms thereof, or (v) as a result of acts or omissions of the Administrative Agent or any Lender;
(m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted in writing by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date);
(n) any material Guarantees of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date); or
(o) a Change of Control shall occur; then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01), 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 Borrower; and in case of any event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01, 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.restatement -139-
Appears in 1 contract
Samples: Credit Agreement (N-Able, Inc.)
EVENTS OF DEFAULT Events of Default. If The occurrence of any of the following events (events, whether voluntary or involuntary, arising or effected by operation of law or pursuant to or in compliance with any such eventjudgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, not cured within the applicable cure period, if any, shall constitute an “"Event of Default”) shall occur:
(a) any Loan Party shall fail ": the failure of Borrower to pay on the Maturity Date, on any date when due and payable under Section 5.3 hereof or on any prepayment date all principal of and interest on the Loan and all other amounts due Agent or any Lender under the Financing Documents; other than as set forth in Section 12.1(a) hereof, the failure of Borrower to pay when due and payable any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as interest on the same shall become due and payableLoan, whether at the by reason of due date thereof or at a date fixed for prepayment thereof date, notice of prepayment, cancellation, acceleration or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan or any interest on any reimbursement obligation in respect of any LC Disbursement or any fee or any other amount (other than an amount referred to in paragraph (a) of this Section 7.01) payable under any Loan Document, when and as the same shall become due and payable, and such failure continues for two Banking Days after such amount shall continue unremedied become due; the failure of Borrower, Trust Company or Beneficiary to pay when due and payable any amount, other than principal and interest on the Loan, that may become due under any of the Financing Documents, whether by reason of stated maturity or due date, notice of prepayment, cancellation, acceleration or otherwise, and such failure continues for a period eight days after the giving of written notice by the Agent or any Lender of such failure; any lapse of or failure by Borrower to maintain the Insurances or perform its obligations set forth in Section 11.9 hereof, to preserve and maintain its trust existence as required by Section 10.2 hereof, or to procure and maintain the registration of the Airframe in the name of the Borrower; the failure by Borrower to perform or cause to be performed its obligations as set forth in Section 11.2 hereof concerning the preparation or recordation of any document or instrument required by Agent or any Lender for the maintenance or perfection of the Lien on the Collateral within five Business Days;
Banking Days after the giving of written notice thereof by Agent or any Lender; any failure by Borrower, Trust Company or Beneficiary to fulfill any covenant or to perform any obligation under any Financing Document or Transaction Document other than as set forth in Sections 12.1(a) through (ce) above, and such failure is not cured within 30 days after the giving of written notice thereof by Agent or any Lender; if any representation or warranty made by Borrower, Trust Company or deemed made by Beneficiary in any Financing Document or on behalf of the Borrower or any of the Subsidiary Loan Parties in or in connection with any Loan Transaction Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove proves to have been incorrect untrue, inaccurate or incomplete in any material respect (orat the time when made or when effective and Borrower, if such Trust Company or Beneficiary fails to do that which shall be necessary in order that said representation or warranty is qualified as to “materiality,” “Material Adverse Effect” shall be true, accurate or similar language, in any respect) when made complete within 30 days after the earlier of actual knowledge thereof by Borrower or deemed made;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), Section 5.04 (with respect to the existence of the Borrower)giving of written notice thereof by Agent or any Lender; provided, Section 5.10 however, if Borrower does not perform the obligations set forth in Sections 10.11 and/or 10.12 hereof within the time period provided therein, same shall constitute an Event of Default two (2) days after the giving of written notice thereof by Agent or any Lender; if one or more final, uninsured nonappealable judgments or decrees (not paid or fully covered by insurance) are entered against Borrower or Beneficiary involving individually or in Article VI;
(e) any Loan Party the aggregate a liability of the equivalent of $100,000 or more and all such judgments or decrees shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraph (a), (b) or (d) of this Section 7.01), and such failure shall continue unremedied remain undischarged for a period of 30 days after the earlier of (i) the date upon during which the Administrative Agent has given the Borrower written notice of such failure or (ii) the date on which any Responsible Officer of any Loan Party acquires actual knowledge of such failure;
(f) the execution shall not be effectively stayed; if Borrower or any Beneficiary files a voluntary petition in bankruptcy or a voluntary petition or an answer seeking readjustment of the Restricted Subsidiaries shall fail to make any payment (whether of principal its debts or interest and regardless of amount) in respect of any Material Indebtedness (other than any Material Indebtedness that is owed to the Borrower and/or any Restricted Subsidiary and other than the Loan Document Obligations) when and as the same shall become due and payable (after giving effect to any applicable grace period); provided that this clause (f) shall not apply to any breach or default that is (i) remedied by the Borrower or the applicable Restricted Subsidiary or (ii) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in the case of (i) and (ii), prior to the acceleration of Loans pursuant to this Section 7.01;
(g) any breach or default by the Borrower or any of the Restricted Subsidiaries with respect to for any other term of any Material Indebtedness described in the foregoing clause (f), but solely to the extent the effect of such breach or event of default is to cause, or to permit (with all applicable grace periods having expired) the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and payable (or mandatorily redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that this paragraph (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement) or (ii) termination events or similar events occurring relief under any Swap Agreement that constitutes Material Indebtedness (it being understood that paragraph (f) of this Section 7.01 will apply to any failure to make any payment required as a result of any such termination or similar event); provided further, that such failure is unremedied and is not validly waived by the holders of such Indebtedness in accordance with the terms of the documents governing such Indebtedness prior to any termination of the Revolving Commitments or acceleration of the Loans pursuant to this Section 7.01;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, court protection, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a material part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter in effect existing, or (ii) the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for the any action is taken by Borrower or any Material Subsidiary or for a material part of Beneficiary indicating its assetsconsent to, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, court protection, 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 approval of, or fail to contest in a timely and appropriate manneracquiescence in, any proceeding such petition or petition described in paragraph (h) of this Section 7.01proceeding; or if Borrower or Beneficiary applies for, (iii) apply for or consent to sustains the appointment of by consent or acquiescence of, a receiver, trustee, examiner, custodian, sequestrator, conservator receiver or similar official trustee for the Borrower or any Material Subsidiary Beneficiary for all or for a material substantial part of its assets, (iv) file their respective property; or if Borrower or Beneficiary makes an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of its creditors;
(j) entry , or filing of one or more final money judgments, writs or warrants of attachment against the if Borrower or Beneficiary fails to pay or becomes unable to pay its debts as they mature; if an involuntary petition is filed against Borrower or Beneficiary in bankruptcy or seeking readjustment of its debts or for any other relief under any bankruptcy, insolvency, or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a receiver or trustee is involuntarily appointed for Borrower or Beneficiary for all or a substantial part of their respective property; or there is served on Borrower or Beneficiary a warrant of attachment, execution or similar process against any material property and any of the Restricted Subsidiaries (such events continues for 60 days undismissed, unbonded or undischarged; if any combination thereof) Financing Document or any assets of such Person in an aggregate amount in excess of $10.0 million (excluding (i) amounts paid or covered by insurance (including self-insurance) or indemnity as to which the insurer or indemnifying party, as applicable, has been notified of such judgment, writ or warrant and has not disputed or otherwise contested in writing such insurance coverage or indemnification obligation, as applicable, and (ii) amounts escrowed pursuant to the definitive documentation for any Permitted Acquisition, any Investment permitted hereunder or any Disposition permitted hereunder, in each case, to the extent available to the Borrower or such Restricted Subsidiary for payment of such liabilities), which such judgment, writ or warrant remains undischarged for a period of 60 consecutive days (except to the extent that the terms of such judgment, writ or warrant specifically provide for a longer payment term and the Borrower or such Restricted Subsidiary, as applicable, timely discharges or satisfies such obligations during such specified longer term);
(k) an ERISA Event occurs, either alone or together with all other ERISA Events, that has resulted or would reasonably be expected to result in liability of the Borrower or any Subsidiary in an aggregate amount that would reasonably be expected to result in a Material Adverse Effect;
(l) any Lien purported to be created under any Security Transaction Document shall cease to be, or shall be asserted in writing by at any Loan Party not to be, a valid time after its respective execution and perfected Lien on any material portion of the Collateral, 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, (ii) as a result of the Administrative Agent’s failure to (A) maintain possession of any physical Collateral delivered to it under the Security Documents or (B) file UCC (or equivalent) continuation statements, (iii) as to Collateral consisting of real property to the extent (x) that such losses are covered by a lender’s title insurance policy delivery and such insurer has not denied coverage and (y) such deficiency arose through no fault of the Loan Parties, and such deficiency is corrected with reasonable diligence upon obtaining actual knowledge thereof, (iv) the occurrence of the Termination Date or the termination of such Security Document in accordance with the terms thereof, or (v) as a result of acts or omissions of the Administrative Agent or any Lender;
(m) any material provision of any Loan Document or any Guarantee of the Loan Document Obligations shall for any reason be asserted in writing by any Loan Party not to be a legal, valid and binding obligation of any Loan Party thereto (in each case, other than in accordance with the terms of the Loan Documents or as a result of the occurrence of the Termination Date);
(n) any material Guarantees of the Loan Document Obligations by any Loan Party pursuant to the Guarantee Agreement shall cease to be in full force and effect (effect, or any certificate, instrument or documents issued and executed pursuant to the Financing Documents or Transaction Documents shall for any reason cease to be effective to constitute a valid and perfected first priority Lien in each caseand to the Collateral, other than in accordance with except for Permitted Liens; subject to the terms express provisions of this Agreement or the Lease, if the Equipment or any part of the Loan Documents Equipment is sold, transferred, assigned, leased, encumbered or as a result otherwise disposed of by Borrower without the prior consent of Agent; if Borrower and Lessee fail to execute and deliver the Lease on or prior to July 2, 2002, or if the Lessee does not take delivery of the occurrence of Aircraft under the Termination Date); or
(o) a Change of Control shall occur; thenLease or on prior to July 2, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01), 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 Borrower2002; and in case if a Lease Event of any event with respect to the Borrower described in paragraph (h) or (i) of this Section 7.01, the Commitments shall automatically terminate Default occurs 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.is continuing. Acceleration. ------------
Appears in 1 contract
