Common use of Events of Default Rights and Remedies Clause in Contracts

Events of Default Rights and Remedies. 8.1 Events of Default The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an “Event of Default” hereunder: (a) Any Borrower (i) fails to make any payment of principal of; or interest on, or Fees owing in respect of, the Loans or any of the other Obligations when due and payable, or fails to provide cash collateral as and when required, or (ii) fails to pay or reimburse Agent or Lenders for any expense reimbursable hereunder or under any other Loan Document within ten (10) days following Agent’s demand for such reimbursement or payment of expenses. (b) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6 applicable to it, or any of the provisions set forth in Annexes C, E or G, respectively applicable to it. (c) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of Section 4 or any provisions set forth in Annex F, applicable to it and the same shall remain unremedied for ten (10) days or more. (d) Any Credit Party fails or neglects to perform, keep or observe any other provision of this Agreement or of any of the other Loan Documents applicable to it, (other than any provision embodied in or covered by any other clause of this Section 8.1) and the same shall remain unremedied for thirty (30) days or more. (e) A default or breach occurs under any other agreement, document or instrument to which any Credit Party is a party that is not cured within any applicable grace period therefor, and such default or breach (i) involves the failure to make any payment when due in respect of any Indebtedness or Guaranteed Indebtedness (other than the Obligations) of any Credit Party, including the Senior Debt and the Indebtedness under the Senior Subordinated Note Indenture, in excess of $2,000,000 in the aggregate (including (x) undrawn committed or available amounts and (y) amounts owing to all creditors under any combined or syndicated credit arrangements), or in respect of any lease under which any Credit Party is lessee under which the aggregate cost of the leased property exceeds $2,000,000, or (ii) causes, or permits any holder of such Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or Guaranteed Indebtedness or a portion thereof, including the Senior Debt, in excess of $2,000,000 in the aggregate, or rent in excess of $2,000,000 in the aggregate, to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, or cash collateralized in respect thereof to be demanded, in each case, regardless of whether such right is exercised, by such holder or trustee. (f) Any information contained in any Borrowing Base Certificate is untrue or incorrect in any respect (other than inadvertent, immaterial errors not exceeding $2,500,000 in the aggregate in any Borrowing Base Certificate), or any representation or warranty herein or in any Loan Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate) made or delivered to Agent or any Lender by any Credit Party is untrue or incorrect in any material respect as of the date when made or deemed made. (g) Assets with a value in excess of $1,000,000 of any Credit Party are attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors of any Credit Party and such condition continues for sixty (60) days or more. (h) A case or proceeding is commenced against any Credit Party seeking a decree or order in respect of such Credit Party (i) under the Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party or for any substantial part of any such Credit Party’s assets, or (iii) ordering the winding-up or liquidation of the affairs of such Credit Party, and such case or proceeding shall remain undismissed or unstayed for 60 days or more or a decree or order granting the relief sought in such case or proceeding shall be entered by a court of competent jurisdiction. (i) Any Credit Party (i) files a petition seeking relief under the Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consents to or fails to contest in a timely and appropriate manner the institution of proceedings thereunder or the filing of any such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party or for any substantial part of any such Credit Party’s assets, (iii) makes an assignment for the benefit of creditors, (iv) takes any action in furtherance of any of the foregoing or (v) admits in writing its inability to, or is generally unable to, pay its debts as such debts become due. (j) A final judgment or judgments for the payment of money in excess of $1,000,000 in the aggregate at any time are outstanding against one or more of the Credit Parties and the same are not, within 30 days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to the expiration of any such stay. (k) Any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Credit Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any Lien created under any Loan Document on assets with a value in excess of $1,000,000 in the aggregate ceases to be a valid and perfected first priority Lien (except as otherwise permitted herein or therein) in any of the Collateral purported to be covered thereby. (l) Any Change of Control occurs.

Events of Default Rights and Remedies. 8.1 Events of Default The occurrence of any one -------------------------------------- (1) or more of the following events (regardless prior to the expiration of the reason therefor) Term hereof shall constitute an “"Event of Default” " hereunder: (a) Any Borrower (i) fails to make any payment of principal of; 13.1 Default by either party in the performance or interest on, or Fees owing in respect of, the Loans or any of the other Obligations when due and payable, or fails to provide cash collateral as and when required, or (ii) fails to pay or reimburse Agent or Lenders for any expense reimbursable hereunder or under any other Loan Document within ten (10) days following Agent’s demand for such reimbursement or payment of expenses. (b) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6 applicable to it, or any of the provisions set forth in Annexes C, E or G, respectively applicable to it. (c) Any Credit Party fails or neglects to perform, keep or observe any of the provisions of Section 4 or any provisions set forth in Annex F, applicable to it and the same shall remain unremedied for ten (10) days or more. (d) Any Credit Party fails or neglects to perform, keep or observe any other provision of this Agreement or observance of any of the other Loan Documents applicable to itmaterial terms, agreements, covenants or conditions of this Agreement (other than any provision embodied payment terms which are addressed in or covered by any other clause of this Section 8.1) and the same shall remain unremedied 11 above), which default continues uncured for thirty (30) days after written notice thereof; 13.2 The application by either party hereto (or more. (eits corporate parent) A default or breach occurs under any other agreement, document or instrument to which any Credit Party is a party that is not cured within any applicable grace period therefor, and such default or breach (i) involves the failure to make any payment when due in respect of any Indebtedness or Guaranteed Indebtedness (other than the Obligations) of any Credit Party, including the Senior Debt and the Indebtedness under the Senior Subordinated Note Indenture, in excess of $2,000,000 in the aggregate (including (x) undrawn committed or available amounts and (y) amounts owing to all creditors under any combined or syndicated credit arrangements)for, or in respect consent to, the appointment of any lease under which any Credit Party is lessee under which the aggregate cost of the leased property exceeds $2,000,000, or (ii) causes, or permits any holder of such Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or Guaranteed Indebtedness or a portion thereof, including the Senior Debt, in excess of $2,000,000 in the aggregate, or rent in excess of $2,000,000 in the aggregate, to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, or cash collateralized in respect thereof to be demanded, in each case, regardless of whether such right is exercised, by such holder or trustee. (f) Any information contained in any Borrowing Base Certificate is untrue or incorrect in any respect (other than inadvertent, immaterial errors not exceeding $2,500,000 in the aggregate in any Borrowing Base Certificate), or any representation or warranty herein or in any Loan Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate) made or delivered to Agent or any Lender by any Credit Party is untrue or incorrect in any material respect as of the date when made or deemed made. (g) Assets with a value in excess of $1,000,000 of any Credit Party are attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee, liquidator or custodian or assignee for the benefit of creditors of any Credit Party and such condition continues for sixty (60) days or more. (h) A case or proceeding is commenced against any Credit Party seeking a decree or order in respect of such Credit Party (i) under the Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party of it or for any of all or a substantial part of any such Credit Party’s its assets, or if either party (iiior its corporate parent) ordering the winding-up or liquidation of the affairs of such Credit Party, and such case or proceeding shall remain undismissed or unstayed for 60 days or more or a decree or order granting the relief sought in such case or proceeding shall be entered by a court of competent jurisdiction. shall: (i) Any Credit Party (i) files make a petition seeking relief under the Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) consents to or fails to contest in a timely and appropriate manner the institution of proceedings thereunder or the filing of any such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party or for any substantial part of any such Credit Party’s assets, (iii) makes an general assignment for the benefit of creditors, ; (ii) be adjudicated a bankrupt or insolvent; (iii) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or any arrangement with creditors or to take advantage of any insolvency law; (iv) takes file an answer admitting the material allegations of a petition filed against it in any action in furtherance of any of the foregoing bankruptcy, reorganization or insolvency proceeding; or (v) admits in writing its inability to, or is generally unable to, pay its debts as such debts become due. (j) A final judgment or judgments if any corporate action shall be taken by it for the payment purpose of money in excess of $1,000,000 in the aggregate at any time are outstanding against one or more of the Credit Parties and the same are not, within 30 days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to the expiration of any such stay. (k) Any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Credit Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of effecting any of the Loan Documents has ceased to foregoing; or if an order, judgment or decree shall be entered by any court or otherwise is not validtribunal of competent jurisdiction approving a petition seeking reorganization or appointing a receiver, binding trustee, liquidator or custodian (or other similar official) of either party hereto (or its corporate parent) or of all or a substantial part of its assets, and enforceable such order, judgment or decree shall continue unstayed and in accordance with its terms), effect for a period of thirty (30) consecutive days; 13.3 Any representation or warranty contained in this Agreement shall be false or misleading in any Lien created material respect and remains uncorrected for thirty (30) days after written notice thereof; or 13.4 The occurrence of a material breach under any Loan Document on assets the E-Commerce Letter Agreement with a value in excess material breach by XXX.XXX thereunder shall be deemed an Event of $1,000,000 in the aggregate ceases to Default by XXX.XXX hereunder, and a material breach by TOUR thereunder shall be a valid and perfected first priority Lien (except as otherwise permitted herein or therein) in any deemed an Event of the Collateral purported to be covered therebyDefault by TOUR hereunder. (l) Any Change of Control occurs.

Events of Default Rights and Remedies. 8.1 Events of Default The occurrence of any one or more of the following events (regardless of the reason therefor) ), without the written consent of the Lender (which may be by email between the parties or counsel), shall constitute an “Event of Default” hereunder: (a) Any The Borrower (i) fails shall fail to make any payment of principal of; , or interest on, or Fees fees owing in respect of, the Loans Loan or any of the other Obligations when due and payable, or fails to provide cash collateral as and when required, or (ii) fails shall fail to pay or reimburse Agent or Lenders the Lender for any expense reimbursable hereunder or under any other Loan Document within ten (10) days Business Days following Agentthe Lender’s demand written demands for such reimbursement or payment of expensespayment. (b) Any Credit Loan Party fails or neglects shall fail to perform, keep or observe comply with any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6 applicable to it, or any Section 15 of the provisions set forth in Annexes C, E or G, respectively applicable to itthis Note. (c) Any Credit Loan Party fails or neglects shall fail to perform, keep or observe comply with any of the provisions of Section 4 14 or any provisions set forth in Annex F, applicable to it and the same shall remain unremedied for ten (10) days or more. (d) Any Credit Party fails or neglects to perform, keep or observe any other provision of this Agreement Note or of any of the other Loan Documents applicable to it, (other than any provision embodied in or covered by any other clause of this Section 8.116) and the same same, if capable of being remedied, shall remain unremedied for thirty five (305) days or moreBusiness Days after the date written notice of such Default shall have been given by the Lender to such Loan Party. (ed) A default a Default or breach occurs shall occur under any other agreement, document or instrument to which any Credit Loan Party is a party other than any Existing Credit Facility or in respect of Mechanic’s Lien Obligations that is not cured within any applicable grace period therefor, and such default Default or breach (i) involves the failure to make any payment when due in respect of any Indebtedness or Guaranteed Indebtedness (other than the Obligations) of any Credit Party, including the Senior Debt and the Indebtedness under the Senior Subordinated Note Indenture, Loan Party in excess of $2,000,000 100,000 in the aggregate (including (x) undrawn committed or available amounts and (y) amounts owing to all creditors under any combined or syndicated credit arrangements), or in respect of any lease under which any Credit Party is lessee under which the aggregate cost of the leased property exceeds $2,000,000aggregate, or (ii) causes, or permits any holder of such Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or Guaranteed Indebtedness or a portion thereof, including the Senior Debt, thereof in excess of $2,000,000 100,000 in the aggregate, or rent in excess of $2,000,000 in the aggregate, aggregate to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, or cash collateralized in respect thereof to be demanded, in each case, regardless of whether such Default is waived, or such right is exercised, by such holder or trustee. (fe) Any information contained in any Borrowing Base Certificate is untrue or incorrect in any respect (other than inadvertent, immaterial errors not exceeding $2,500,000 in the aggregate in any Borrowing Base Certificate), or any representation or warranty herein or in any other Loan Document or in any written statement, report, financial statement or certificate (other than a Borrowing Base Certificate) made or delivered to Agent or any Lender by any Credit Loan Party is untrue or incorrect in any material respect (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date when made or deemed made. (f) There shall commence any suit or action against the Lender by or on behalf of any Loan Party that asserts a claim or seeks a legal or equitable remedy that would have the effect of subordinating the claim or Lien of the Lender and, if such suit or action is commenced by any Person other than Borrower or any Subsidiary, officer, or employee of Borrower, such suit or action shall not have been dismissed or stayed within 10 days after service thereof on the Lender. (g) Assets Any provision of any Loan Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any Loan Document has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any Lien created under any Loan Document shall cease to be a valid and perfected first priority Lien (except as otherwise permitted herein) in any of the Collateral purported to be covered thereby. (h) (x) Collateral with a fair market value in excess of $1,000,000 of any Credit Party 100,000 or more are attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors of any Credit Loan Party and such condition continues for sixty (60) days or more. (h) A case or proceeding is commenced against any Credit Party seeking a decree or order in respect of such Credit Party (i) under the Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or other similar law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Credit Party or for any substantial part of any such Credit Party’s assets, or (iii) ordering the winding-up or liquidation of the affairs of such Credit Party, and such case or proceeding shall remain undismissed or unstayed for 60 5 days or more or (y) there is a decree failure by the Borrower or order granting the relief sought any of its Subsidiaries to pay final judgments aggregating in such case excess of $100,000 (excluding amounts covered by insurance), which judgments are not paid, discharged or proceeding shall be entered by stayed for a court period of competent jurisdiction10 days. (i) Any Credit Loan Party or any Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law; 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 part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 45 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 45 calendar days, or an order for relief is entered in any such proceeding. If any Event of Default shall have occurred and be continuing, then the Lender may, upon written notice to the Borrower: (i) files a petition seeking relief under the Bankruptcy Code, declare all or any other applicable federalportion of the Obligations, state including all or foreign bankruptcy or other similar lawany portion of the Loan, to be forthwith due and payable and (ii) consents exercise any rights and remedies under the Loan Documents or at law or in equity; provided that upon the occurrence of an Event of Default under Section 16(i) above, the unpaid principal amount of the Loan and all interest and other premiums, amounts and Obligations under the Loan Documents shall automatically become due and payable without further action of the Lender. Upon the occurrence of an Event of Default and the exercise by the Lender of its rights and remedies under this Note and the other Loan Documents pursuant to clause (ii) above, each Loan Party shall assist the Lender in effecting a sale or fails other disposition of the Collateral upon such terms as are designed to contest maximize the proceeds obtainable from such sale or other disposition. Except as otherwise provided for in a timely this Note or by applicable law, the Borrower waives: (a) presentment, demand and appropriate manner the institution protest and notice of proceedings thereunder presentment, dishonor, notice of intent to accelerate, notice of acceleration, protest, Default, nonpayment, maturity, release, compromise, settlement, extension or the filing renewal of any such petition or all commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by the appointment of or Lender on which the Borrower may in any way be liable, and hereby ratifies and confirms whatever the Lender may do in this regard; (b) all rights to notice and a hearing prior to the Lender taking possession or control of, or Xxxxxx’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by a custodian, receiver, liquidator, assignee, trustee or sequestrator any court prior to allowing Lender to exercise any of its remedies; and (or similar officialc) for such Credit Party or for any substantial part of any such Credit Party’s assets, (iii) makes an assignment for the benefit of creditorsall valuation, (iv) takes any action in furtherance of any of appraisal, marshaling and exemption laws. To the foregoing or (v) admits in writing its inability toextent permitted by law, or is generally unable to, pay its debts as such debts become due. (j) A final judgment or judgments for the payment of money in excess of $1,000,000 in the aggregate at any time are outstanding against one or more of the Credit Parties and the same are not, within 30 days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior Lender’s sole duty with respect to the expiration of any such stay. (k) Any material provision of any Loan Document for any reason ceases to be validcustody, binding safekeeping and enforceable in accordance with its terms (or any Credit Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any Lien created under any Loan Document on assets with a value in excess of $1,000,000 in the aggregate ceases to be a valid and perfected first priority Lien (except as otherwise permitted herein or therein) in any physical preservation of the Collateral purported in its possession, under section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as the Lender deals with similar securities and property for its own account, the Lender’s duty of care with respect to Collateral in the custody or possession of a bailee or other third person shall be covered therebydeemed fulfilled if the Lender exercises reasonable care in the selection of the bailee or other third person, and the Lender need not otherwise preserve, protect, insure or care for any Collateral, and the Lender shall not be obligated to preserve any rights any Loan Party may have against prior parties. Any amount or payment received by the Lender from any Loan Party or from the proceeds of Collateral following (i) any acceleration of the Obligations under this Note or (ii) at the direction of the Lender after any Event of Default, shall be applied to the Obligations as determined by the Lender and once paid in full, any excess shall be paid to the Borrower or as otherwise required by applicable law. (l) Any Change of Control occurs.