Events of. DEFAULT If any of the following events shall occur and be continuing: (a) the Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or (b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or (c) any Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7 of this Agreement; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such default shall continue unremedied for a period of 30 days after written notice to the Borrower from the Administrative Agent or the Required Lenders; or (e) any Group Member shall (i) default in making any payment of any principal of any Material Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created; (iii) other than with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause (with all applicable grace periods having expired), with the giving of notice if required, such Material Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable (provided that this clause (iii) shall not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by the terms of this Agreement); or (iv) with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default shall not constitute an Event of Default hereunder unless (1) the holders of the ABL Loans cause the ABL Loans to become due prior to their stated maturity (and such acceleration has not been rescinded) and/or the ABL Commitments to terminate prior to their stated termination date or (2) the ABL Administrative Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result of such default); or 91 509265-2041-Active.31278172.28 (i) the Borrower or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, 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, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the Borrower or any Material Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 consecutive days; or (iii) there shall be commenced against the Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
Appears in 1 contract
Events of. DEFAULT If any Each of the following events shall occur and be continuingconstitute an "Event of Default":
(ai) The Borrower shall fail to pay when due any principal of any Loan or any reimbursement obligation arising from a drawing under a Letter of Credit, or (ii) the Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, or any Loan Party shall fail to pay when due any other amount payable hereunder or under any other Loan Document, within five Business Days after Document and any such interest default specified in this clause (ii) shall continue for five or other amount becomes due in accordance with the terms hereof; or more days.
(b) any representation Any representation, warranty, certification, or warranty statement made or deemed made by any Loan Party herein (or any of its officers) in any other Loan Document or that is contained in any certificate, document or financial statement, or other statement furnished by it at any time under document delivered pursuant thereto shall be false, misleading, or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate incorrect in any material respect on or as of the date when made or deemed made; or .
(c) The Borrower shall fail to perform, observe, or comply with any Loan Party shall default in the observance covenant, agreement, or performance of any agreement term contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7 6.01 of this Agreement; or (d) any Loan Party shall default in the observance fail to perform, observe, or performance of comply with any other agreement covenant, agreement, or term contained in this Agreement or any other Loan Document (other than as provided a failure covered elsewhere in paragraphs (a) through (c) of this Section 8), 7.01) and such default failure shall continue unremedied for a period of 30 thirty (30) days after written notice thereof to such Loan Party by the Borrower from the Administrative Agent Bank.
(d) Any Loan Party or the Required Lenders; orany Subsidiary shall admit in writing its inability to, or be generally unable to, pay its debts as such debts become due.
(e) Any voluntary or involuntary proceeding under any Group Member Debtor Relief Law shall be commenced by or against any Loan Party or any Subsidiary or any of their respective assets, and if an involuntary proceeding is commenced, such proceeding shall not be dismissed within thirty (i30) default in making days after the commencement thereof.
(f) Any Loan Party or any payment of Subsidiary shall fail to pay when due any principal of any Material Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created; indebtedness for borrowed money (iii) other than with respect to Indebtedness the Note) having an outstanding under principal amount greater than $5,000,000, whether as principal obligor, guarantor, or otherwise, or the ABL Credit Agreement, default in the observance or performance maturity of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which default is to cause (with all applicable grace periods having expired)indebtedness shall have been accelerated, or to permit any event shall have occurred that permits (or, with the giving of notice or lapse of time or both, would permit) any holder or beneficiary holders of such Indebtedness (indebtedness or a trustee or agent any Person acting on behalf of such holder or beneficiaryholders to accelerate the maturity thereof.
(g) to cause (with all applicable grace periods having expired), with Any judgment or order for the giving payment of notice if required, such Material Indebtedness to become due prior to its stated maturity money in excess of $500,000 shall be rendered against any Loan Party or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable (provided that this clause (iii) shall not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by the terms of this Agreement); or (iv) with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default shall not constitute an Event of Default hereunder unless (1) the holders of the ABL Loans cause the ABL Loans to become due prior to their stated maturity (Subsidiary and such acceleration has not been rescinded) and/or the ABL Commitments to terminate prior to their stated termination date or (2) the ABL Administrative Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result of such default); or 91 509265-2041-Active.31278172.28
either (i) the Borrower enforcement proceedings shall have been commenced by any creditor upon such judgment or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, 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, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the Borrower any period of 10 consecutive days during which a stay of enforcement of such judgment or any Material Subsidiary any caseorder, proceeding or other action by reason of a nature referred pending appeal or otherwise, shall not be in effect.
(h) Any Loan Party shall dissolve, liquidate, or terminate its legal existence or shall convey, transfer, lease, or dispose of (whether in one transaction or a series of transactions) all or substantially all of its assets to in clause any Person.
(i) above that IMC Global Inc. shall at any time fail to (A) results own, directly or indirectly, at least 50% of the capital interests in the entry of an order for relief or any such adjudication or appointment or Borrower, (B) remains undismissed own, directly or undischarged for a period indirectly, at least 50% of 60 consecutive days; the capital stock or capital interests in the corporate managing partner of the Borrower, or (iiiC) there shall be commenced against appoint and control, directly or indirectly, at least 50% of the Borrower or any Material Subsidiary any case, proceeding members of the Policy Committee (or other action seeking issuance governing body) of the Borrower.
(j) Any event or condition shall occur that could reasonably be expected to have a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; orMaterial Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Events of. DEFAULT If any one or more of the following events shall occur and be continuing:("Events of Default" or an "Event of Default"):
(a) the Borrower Debtor shall fail to pay principal or interest on any Loan when due, or
(b) Debtor shall fail to pay any principal of any other Loan Obligation when due in accordance with the terms hereofand such failure shall continue for 3 business days; or the Borrower shall fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or or
(bc) any Any representation or warranty made by Debtor in, or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificatepursuant to, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Related Document shall prove to have been inaccurate incorrect or misleading in any material respect on or as of the date when made or deemed made; or or
(cd) any Loan Party Debtor shall be in default in the observance performance any term, or performance of any agreement contained in clause (i) or (ii) provision of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7 of this Agreement; or (d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such default shall continue unremedied for a period of 30 days after written notice to the Borrower from the Administrative Agent or the Required Lenders7; or
(e) any Group Member breach of any of the provisions of Section 6.1, 6.2, or 6.10, which is not cured within 10 days following written notice of such breach; or
(f) There shall (i) be a default in making any payment agreement to which Debtor is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any principal Indebtedness in an amount in excess of any Material Indebtedness One Hundred Thousand Dollars (including any Guarantee Obligation$100,000) on the scheduled or original due date with respect theretothat would reasonably be expected to have a MAE; or (ii) default in making any payment of any interest on any such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created; (iii) other than with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause (with all applicable grace periods having expired), with the giving of notice if required, such Material Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable (provided that this clause (iii) shall not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by the terms of this Agreement); or (iv) with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default shall not constitute an Event of Default hereunder unless (1) the holders of the ABL Loans cause the ABL Loans to become due prior to their stated maturity (and such acceleration has not been rescinded) and/or the ABL Commitments to terminate prior to their stated termination date or (2) the ABL Administrative Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result of such default); or 91 509265-2041-Active.31278172.28or
(ig) the Borrower or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an An order for relief shall be entered with respect against Debtor by any United States Bankruptcy Court; or Debtor shall generally not pay its debts as they become due (within the meaning of 11 U.S.C. 303(h) as at any time amended or any successor statute thereto) or make an assignment for the benefit of creditors; or Debtor shall apply for or consent to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking the appointment of a custodian, receiver, trustee, custodian, conservator or other similar official officer for it or for all or any substantial part of its assetsproperty; or (ii) there such custodian, receiver, trustee, or similar officer shall be commenced against appointed without the Borrower application or any Material Subsidiary any case, proceeding or other action consent of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any Debtor and such adjudication or appointment or (B) remains undismissed or shall continue undischarged for a period of 60 consecutive sixty (60) days; or Debtor shall institute (iiiby petition, application, answer, consent, or otherwise) there any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be commenced instituted (by petition, application, or otherwise) against Debtor and shall remain undismissed for a period of sixty (60) days; or
(h) This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of this Agreement or any Related Document to create a valid and perfected first priority security interest or lien subject to Permitted Liens in all the Collateral at any time and for any reason); or
(i) Commencement of foreclosure, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Debtor against any Collateral with a fair market value of One Hundred Thousand Dollars ($100,00) or more, or any creditor takes, attempts to take or gives written or oral notice to Debtor of its intent to take any action against the Borrower property of Debtor or any Material Subsidiary any caseof its subsidiaries on or in which Secured Party has a lien or security interest. This includes a garnishment, proceeding or other action seeking issuance of a warrant of attachment, executionor levy on or of any of Debtor's deposit accounts; or
(j) There shall occur a MAE; or
(k) There shall occur a Change of Control; or
(l) Except for the events described in (a) through (j) above, distraint or similar process against all or any substantial part of its assets that results Debtor shall be in default in the entry of an order for any such relief that shall not have been vacated, dischargedperformance of, or stayed Debtor fails or bonded pending appeal neglects to perform, keep, or observe, any term, provision, condition, covenant, or agreement contained in this Agreement, or in any of the Related Documents, and Debtor has failed to cure such default within 60 thirty (30) days from the entry occurrence thereof; or
(m) A judgment or judgments for the payment of money in an amount, individually or in the aggregate, of at least One Hundred Thousand Dollars ($100,000) shall be rendered against Debtor and shall remain unsatisfied and unstayed for a period of thirty (30) days;
Appears in 1 contract
Events of. DEFAULT If any of the following events ("EVENTS OF DEFAULT") shall occur and be continuingoccur:
(a) the any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any L/C Obligation when and as the same shall become due in accordance with and payable, whether at the terms hereof; due date thereof or the at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan, Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable hereunder or under any other Loan Documentthis Agreement, within when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or Days;
(bc) any representation or warranty made or deemed made by or on behalf of the Company or any Loan Party herein or Subsidiary in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such amendment or modification hereof or waiver hereunder, or in any report, certificate, financial statement or other Loan Document document furnished pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall prove to have been inaccurate in any material respect on materially incorrect or as of the date misleading when made or deemed made; ;
(d) the Company shall fail to observe or (c) perform any Loan Party shall default in the observance covenant, condition or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) 5.02, 5.03 (with respect to the Borrower only), Section 6.7(aCompany's existence) or Section 7 of this Agreement; 5.08 or in Article VI;
(de) any Loan Party Borrower shall default in the observance fail to observe or performance of perform any other covenant, condition or agreement contained in this Agreement or any other Loan Document (other than as provided those specified in paragraphs clause (a), (b) through or (cd) of this Section 8)Article), and such default failure shall continue unremedied for a period of 30 days after written notice thereof from the Agent to the Borrower from Borrowers' Agent (which notice will be given at the Administrative Agent or the Required Lenders; orrequest of any Bank)
(ef) the Company or any Group Member Subsidiary shall (i) be in default in making with respect to any payment (whether of any principal or interest and regardless of amount) in respect of any Material Indebtedness and such failure shall continue beyond the applicable grace period specified in the agreement or instrument relating to such Material Indebtedness;
(including g) the Company or any Guarantee Obligation) on the scheduled or original due date with respect thereto; or (ii) Subsidiary shall default in making any payment of obligation under any interest on any Material Indebtedness and such failure shall result in such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created; (iii) other than with respect being declared to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause (with all applicable grace periods having expired), with the giving of notice if required, such Material Indebtedness to become be due and payable prior to its the stated maturity thereof;
(h) an involuntary proceeding shall be commenced or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable (provided that this clause (iii) an involuntary petition shall not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by the terms of this Agreement); or (iv) with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default shall not constitute an Event of Default hereunder unless (1) the holders of the ABL Loans cause the ABL Loans to become due prior to their stated maturity (and such acceleration has not been rescinded) and/or the ABL Commitments to terminate prior to their stated termination date or (2) the ABL Administrative Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result of such default); or 91 509265-2041-Active.31278172.28
be filed seeking (i) the Borrower or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvencyliquidation, 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, adjustment, winding-up, liquidation, dissolution, composition or other relief with in respect to it 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 (Bii) seeking the appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for it the Company or any Subsidiary or for all or any a substantial part of its assets; , and, in any such case, such proceeding or petition shall continue undismissed for 60 days;
(i) the Company or any Subsidiary 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) there shall be commenced against consent to the Borrower institution of, or fail to contest in a timely and appropriate manner, any Material Subsidiary any case, proceeding or other action of a nature referred to 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 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;
(j) the Company or any Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(i) above that (A) results one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against the entry of an order for relief Company, any Subsidiary or any such adjudication or appointment or (B) remains undismissed or combination thereof and the same shall remain undischarged for a period of 60 30 consecutive days; 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 or (iiiii) any non-monetary judgment, order or decree is entered against the Company or any Subsidiary which does or would reasonably be expected to have a Material Adverse Effect, and there shall be commenced against any period of 30 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;
(l) an ERISA Event shall have occurred that, in the Borrower opinion of the Required Banks, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
(n) the stated (or implied) ratings by S&P and Xxxxx'x, respectively, applicable to the Index Debt shall at any time be lower than BB/Ba2. then, and in every such event (other than an event with respect to the Company or any Material Subsidiary described in clause (h) or (i) of this Article), and at any casetime thereafter during the continuance of such event, proceeding the Agent may with the consent of the Required Banks, or shall at the request of the Required Banks, by notice to the Borrowers' Agent, 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 action seeking issuance notice of a warrant any kind, all of attachment, execution, distraint or similar process against all which are hereby waived by the Borrowers; and in case of any event with respect to the Company or any substantial part Subsidiary described in clause (h) or (i) of its assets that results in this Article, the entry Commitments shall automatically terminate and the principal of an order for 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 such relief that shall not have been vacatedkind, discharged, or stayed or bonded pending appeal within 60 days from all of which are hereby waived by the entry thereof; orBorrowers.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Events of. DEFAULT If any of the following events shall occur and be continuing:
: (a) the Borrower shall fail to pay any principal of any Term Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Term Loan, or any other amount payable hereunder or under any other Loan Credit Document, within five Business Days three days after any such interest or other amount becomes due in accordance with the terms hereof; or (b) any representation or warranty made or deemed made by any Loan Credit Party herein or in any other Loan Credit Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Credit Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or (c) any Loan Credit Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only5.4(a), Section 6.7(a) 5.6(a), Section 5.9 or Section 7 6 of this Agreement; provided, that in the case of any default under Section 5.9 arising from a failure to comply with any provision of Article 5 of the Borrower's Certificate of Incorporation, such default shall continue unremedied for a period of 15 days after the Borrower knows or should have known of such default; or (d) any Loan Credit Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Credit Document (other than as provided in paragraphs (a) through (c) of this Section 8)Section), and such default shall continue unremedied for a period of 30 days after written notice to the Borrower from the Administrative Agent Agent; or the Required Lenders; or
(e) any Group Member "Event of Default" shall have occurred and be continuing under any of the Financing Documents or any Project Loss Event shall have occurred with respect to any Project; provided that no such "Event of Default" under the Financing Documents of any Non-Primary Significant Subsidiary or Project Loss Event with respect to any Non-Primary Project shall constitute an Event of Default under this clause (e) unless there is also in existence either (x) such an "Event of Default" under the Financing Documents of the other Non-Primary Significant Subsidiary or Project Loss Event with respect to the other Non-Primary Project or (y) a default of any of the types described below in clause (f), (m) or (n) of this Section 7 with respect to the other Non-Primary Significant Subsidiary or other Non-Primary Project, as the case may be; or (f) the Borrower, any Significant Subsidiary Holding Company or any Significant Subsidiary of the Borrower shall (i) default in making any payment of any principal of any Material Indebtedness (including any Guarantee Obligationexcluding the Term Loans) on the scheduled or original due date with respect theretothereto after giving effect to all grace periods, if any, in respect thereof provided in the instrument or agreement under which such Indebtedness was created; or (ii) default in making any payment of any interest on any such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created; or (iii) other than with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to any such 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 (with all applicable grace periods having expired)cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause (with all applicable grace periods having expired)cause, with the giving of notice if required, such Material Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable (payable; provided that this clause (iii) shall not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by the terms of this Agreement); or (iv) no default described above with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default Non-Primary Significant Subsidiary shall not constitute an Event of Default hereunder under this clause (f) unless there is also in existence either (1x) a default described above in this clause (f) or in clause (m) or (n) of this Section 7 with respect to the holders other Non-Primary Significant Subsidiary or other Non-Primary Project, as the case may be, or (y) an "Event of Default" under the Financing Documents of the ABL Loans cause other Non-Primary Significant Subsidiary or a Project Loss Event with respect to the ABL Loans to become due prior to their stated maturity (and Non-Primary Project of such acceleration has not been rescinded) and/or the ABL Commitments to terminate prior to their stated termination date other Non-Primary Significant Subsidiary; or (2g) the ABL Administrative Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result of such default); or 91 509265-2041-Active.31278172.28
(i) the Borrower Borrower, any Significant Subsidiary Holding Company or any Material Significant Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, 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, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower, any Significant Subsidiary Holding Company or any Significant Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower Borrower, any Significant Subsidiary Holding Company or any Material Significant Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed undismissed, undischarged or undischarged unbonded for a period of 60 consecutive days; or (iii) there shall be commenced against the Borrower Borrower, any Significant Subsidiary Holding Company or any Material Significant Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower, any Significant Subsidiary Holding Company or any Significant Subsidiary of the Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower, any Significant Subsidiary Holding Company or any Significant Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (h) (i) any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Required Lenders, reasonably be expected to result in a Material Adverse Change; or (i) Cogentrix Energy shall cease to own and control, of record and beneficially, directly or indirectly through one or more Wholly Owned Subsidiaries, 100% of each class of outstanding Capital Stock of the Borrower free and clear of all Liens (except Liens created by the Security Documents); or (j) any of the Security Documents shall cease, for any reason, to be in full force and effect, or any Credit Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or (k) (i) one or more judgments or decrees shall be entered against any Significant Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $3,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (ii) one or more judgments or decrees shall be entered against the Borrower, any Significant Subsidiary Holding Company or any Subsidiary of the Borrower (excluding the Significant Subsidiaries) involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $250,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (l) the Borrower shall transfer, directly or indirectly, any of its interests in any Significant Subsidiary Holding Company or any Significant Subsidiary; or (m) any Significant Subsidiary shall fail to perform or observe in any material respect the terms or conditions of any Project Document to which it is a party or shall materially breach or otherwise be in default under any such Project Document and such failure, breach or default shall not be remediable or, if remediable, shall (x) continue unremedied after the last day of the applicable cure period, if any, set forth in the applicable Project Document or (y) not be waived (if applicable, in accordance with this Agreement) by the appropriate party; provided, however, that any such failure, breach or default by a Significant Subsidiary shall not constitute an Event of Default under this Section 7(m) so long as such failure, breach or default (A) could not reasonably be expected to result in Material Adverse Change, (B) has not caused nor could it reasonably be expected to cause the termination of any contract for the sale of any Project's electrical output and (C) has not caused nor could it reasonably be expected to cause any Project (other than the Northampton Project) to fail to be a Qualifying Facility at any time; and, provided further, that no such failure, breach or default described above with respect to a Non-Primary Significant Subsidiary shall constitute an Event of Default under this clause (m) unless there is also in existence either (x) a default described above in this clause (m) or in clause (f) or (n) of this Section 7 with respect to the other Non-Primary Significant Subsidiary or other Non-Primary Project, as the case may be, or (y) an "Event of Default" under the Financing Documents of the other Non-Primary Significant Subsidiary or a Project Loss Event with respect to the Non-Primary Project of such other Non-Primary Significant Subsidiary; or (n) (i) if any material provision of any Project Document shall at any time for any reason cease to be valid and binding or in full force and effect; or (ii) if any material provision of any Project Document shall be declared to be null and void or the validity or enforceability thereof shall be contested by any party thereto or any Governmental Authority; or (iii) any counterparty to any Project Document shall deny that it has any further liability or obligation under any Project Document to which it is a party, except upon fulfillment of its obligations thereunder; provided, however, that any such event described in clause (i), (ii) or (iii) above shall not constitute an Event of Default under this Section 7(n) so long as such event (A) could not reasonably be expected to result in a Material Adverse Change (B) has not caused nor could it reasonably be expected to cause the termination of any contract for the sale of any Project's electrical output and (C) has not caused nor could it reasonably be expected to cause any Project (other than the Northampton Project) to fail to be a Qualifying Facility at any time; and, provided further, that no such event described in clause (i), (ii) or (iii) above described above with respect to any Non-Primary Significant Subsidiary shall constitute an Event of Default under this clause (n) unless there is also in existence either (x) a default described above in this clause (n) or in clause (f) or (m) of this Section 7 with respect to the other Non-Primary Significant Subsidiary or other Non-Primary Project, as the case may be, or (y) an "Event of Default" under the Financing Documents of the other Non-Primary Significant Subsidiary or a Project Loss Event with respect to the Non-Primary Project of such other Non-Primary Significant Subsidiary; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (g) above with respect to the Borrower, automatically the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Credit Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Credit Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.
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