Xxxxxx of Default. If any of the following events (“Events of Default”) shall occur: (a) any Loan Party shall fail to pay any principal of any Loan 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 fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other 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 the Borrower or any Restricted Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made; (d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI; (e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender); (f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness; (g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable. (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; (i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; (j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; (k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment; (l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect; (m) a Change in Control shall occur; (n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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 (o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Xxxxxx of Default. If any of the following events (“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 due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other 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 the Borrower or any Restricted Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;
(e) the Borrower or any Subsidiary GuarantorSubsidiary, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness, provided that, with respect to any Convertible Indebtedness, this clause (f) shall not apply to (x) any failure to pay that permits holders of such Convertible Indebtedness to convert or exchange such Convertible Indebtedness or (y) the conversion or exchange of such Convertible Indebtedness, in either case, into or for common stock of the Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower), cash (including in lieu of fractional shares of common stock of the Borrower) or a combination thereof in accordance with the terms thereof;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (subject to, and after the expiration of of, any applicable grace or cure period and with or without the giving of notice, the lapse of time or bothperiod) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant Convertible Indebtedness, (A) any event or condition that permits holders of such Convertible Indebtedness to convert or exchange such Convertible Indebtedness, (B) the conversion or exchange of such Convertible Indebtedness, in either case, into or for common stock of the Revolving Credit Agreement shall Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower), cash (including in lieu of fractional shares of common stock of the Borrower) or a combination thereof in accordance with the terms thereof or (C) any redemption, or calling for redemption, of any Convertible Indebtedness in accordance with its terms, provided such Convertible Indebtedness was not constitute an Event incurred in violation of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.Section 6.01;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Significant Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Significant Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted Significant 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Significant Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Significant Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 125,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.115.10, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code UCC financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Xxxxxx of Default. If any of the following events (“Events of Default”) shall occuroccur and be continuing:
(a) any Loan Party the Company shall fail to pay any principal of any Loan 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 otherwisedue;
(b) any Loan Party the Company shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other interest on any Loan Document, when and as within ten (10) days after the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Daysdate thereof;
(c) any written representation or warranty made or deemed made by or on behalf of the Borrower or any Restricted Subsidiary in Company herein or in connection with this Agreement or by any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or Subsidiary Guarantor in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, Subsidiary Guaranty shall prove to have been incorrect in any material respect (or when made; provided 61 that if any such representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when through inadvertence or oversight, no Event of Default shall occur if such representation or warranty shall be made or deemed madecorrect within 30 days after the Company shall have discovered the error;
(d) the Borrower Company shall fail to perform or observe any of the covenants contained in Section 5.01(b)(xiv)(A), Section 5.02 (other than with respect to any involuntary Lien for purposes of Section 5.02(a)) or Section 5.03; or the Company or any Subsidiary Guarantor shall fail to perform or observe any covenantother term, condition covenant (including Section 5.02(a) with respect to any involuntary Lien) or agreement contained in Section 5.02(a)this Agreement or any Subsidiary Guaranty, 5.03 other than those referred to in clause (with respect a) or (b) above, on its part to be performed or observed and such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower’s existence), 5.08 or 5.09 or in Article VICompany by the Agent;
(e) the Borrower Company or any Subsidiary Guarantor, as applicable, of its Subsidiaries shall fail to observe pay any principal of or perform premium or interest on any covenant, condition Debt which is outstanding in a principal amount of at least $250,000,000 (or agreement contained its equivalent in this Agreement any other currency) in the aggregate (other than those specified in clause but excluding the Loans) of the Company or such Subsidiary (aas the case may be), when the same becomes due and payable (b) whether by scheduled maturity, required prepayment, acceleration, demand or (d) of this Article) or any other Loan Documentotherwise), and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material IndebtednessDebt, and shall not have been cured or waived; or any other default or failure to perform any other agreement under any agreement or instrument relating to any such Debt shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, and shall not have been cured or waived, if (x) such Debt is declared to be due and payable prior to the stated maturity thereof as a result of such default or failure to perform or (y) the effect of such default or failure to perform is to accelerate the maturity of such Debt;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or bothf) the holder or holders of any Material Indebtedness Company or any trustee or agent on of its or their behalf to cause any Material Indebtedness to Significant Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to require pay its debts generally, or shall make a general assignment for the prepayment, repurchase, redemption benefit of creditors; or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced instituted by or an involuntary petition shall be filed against the Company or any of its Significant Subsidiaries seeking (i) 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 other relief in respect of the Borrower or any Restricted Subsidiary or its debtsdebtors, or seeking the entry of a substantial part of its assets, under any Federal, state an order for relief or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for the Borrower or any Restricted Subsidiary it or for a any substantial part of its assetsproperty, and, and in the event of any such caseproceeding instituted against the Company or any of its Significant Subsidiaries, such proceeding shall remain undismissed or petition shall continue undismissed unstayed for sixty (60) a period of 60 days or shall result in the entry of an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidationfor relief, 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 clause (h) of this Article, (iii) apply for or consent to the appointment of a trustee or receiver, trustee, custodian, sequestrator, conservator or similar official for other result adverse to the Borrower Company or such Significant Subsidiary; or the Company or any Restricted 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) Significant Subsidiaries shall take any corporate action for the purpose of effecting to authorize any of the foregoing;actions set forth above in this subsection (e); 62
(jg) the Borrower any final, unsatisfied, undischarged, unpaid and unvacated judgment or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments order for the payment of money in an aggregate amount (to the extent not covered by insurance under which the insurer has not denied liability) in excess of $50,000,000 250,000,000 (net of or its equivalent in any amount covered by insurance by an insurance company that has not disclaimed coverage thereforother currency) shall be rendered against the Borrower, any Restricted Subsidiary Company or any combination thereof of its Subsidiaries and the same (i) enforcement proceedings shall remain undischarged for have been commenced by any creditor upon such judgment or order and at such time, there is no stay of enforcement of such judgment or order then in effect, by reason of a pending appeal or otherwise or (ii) enforcement proceedings shall not have been commenced by any creditor upon such judgment or order and there shall be any period of sixty (60) 60 consecutive days during which execution a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgmentin effect;
(lh) an ERISA Event or similar event with regard to a Foreign Plan Change of Control shall have occurred thatoccurred;
(i) a Termination Event (or Foreign Benefit Event) occurs which, when taken singly or together with all any other such ERISA Termination Events or similar events (and Foreign Benefit Events) that have occurred, has resulted or could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(oj) subject to Sections 5.09 any Subsidiary Guaranty, at any time after its execution and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged obligations under the Collateral Documents Loan Documents, ceases to be in full force and effect; or to file Uniform Commercial Code financing statements the Company contests in writing the validity or continuation statements)enforceability of any Subsidiary Guaranty; or any Subsidiary Guarantor disavows any of its material obligations under any Subsidiary Guaranty; then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Section 7.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and (i) shall at the request request, or may with the consent, of the Required Lenders shallMajority Banks, by notice to the BorrowerCompany, declare the obligation of each Bank to make Loans then outstanding to be due terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Majority Banks, by notice to the Company, declare the Notes, the Loans, all interest thereon and all other amounts payable in whole (or in part, in which case any principal not so declared under this Agreement 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 forthwith due and payable, together with accrued whereupon the Notes, the Loans, all such interest thereon and all fees and other Obligations of the Borrower accrued hereunder and under the other Loan Documents, such amounts 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become be forthwith due and payable, without presentment, demand, protest or other further notice of any kind, all of which are hereby expressly waived by the Borrower. Upon Company; provided, however, that in the occurrence and during the continuance event of an Event of DefaultDefault described in Section 6.01(e), (x) the obligation of each Bank to make Loans shall automatically be terminated and (y) the Notes, the Administrative Agent mayLoans, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at all such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, interest and all other such amounts received on account shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Obligations) in accordance with Section 4.02 of the Security Agreement.Company. 63
Appears in 1 contract
Samples: Term Credit Agreement (Ecolab Inc.)
Xxxxxx of Default. If any of the following events (“Events herein called an "Event of Default”") shall occur:
(a) The Company shall default in the payment of any Loan Party shall fail to pay any part of the principal of any the Loan when and as the same shall become due and payable, whether at the due date thereof maturity or at a date fixed for prepayment thereof by acceleration or otherwise;; or
(b) any Loan Party The Company shall fail to pay any default in the payment of interest on any the Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure default in the payment of interest shall continue unremedied for a period of five (5) Business Days;days after said default; or
(c) The Company fail to perform, keep or observe any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty made by the Company in this Agreement, the Note, the Security Agreement, the Warrant or deemed made by or on behalf of the Borrower or any Restricted Subsidiary in or in connection with this Registration Rights Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or provided in connection with this Agreement herewith or any other Loan Document or any amendment or modification thereof or waiver thereunder, therewith shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;
(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect occurrence of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result one of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking following events: (i) liquidation, reorganization or other relief any "person" (as such term is used in respect Sections 3(a)(9) and 13(d) of the Borrower 1000 Xxx) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1000 Xxx) of 30% or any Restricted Subsidiary or its debts, or more of a substantial part the Company's capital stock having general voting power to elect the directors of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or the Company; (ii) the appointment majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a receiverdirector subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, trusteeafter such merger or consolidation is consummated, custodianeither (A) the Company is not the surviving corporation, sequestratoror (B) if the Company is the surviving corporation, conservator then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or similar official consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the Borrower distribution of all or any Restricted Subsidiary or for a substantial part substantially all of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.
Appears in 1 contract
Xxxxxx of Default. If any of the following events (“Events of Default”each, an "EVENT OF DEFAULT") shall occuroccurs:
(a) any material representation or warranty made by the Borrower or any Guarantor in this Agreement or in any Loan Party Document or in connection with this Agreement or with the execution and delivery of the Notes or the credit extensions hereunder or any material statement or representation made in any report, financial statement, certificate or other document furnished by the Borrower or any Guarantors to the Administrative Agent, the Issuing Bank, the Agent or any of the Lenders under or in connection with this Agreement or any other Loan Document, shall fail prove to pay have been false or misleading in any material respect when made or delivered; or
(b) default shall be made in the payment of any (i) Fees or interest on the Loans when due, and such default shall continue unremedied for more than three (3) Business Days or (ii) principal of any Loan the Loans or other amounts payable by the Borrower hereunder (including, without limitation, reimbursement obligations or cash collateralization in respect of Letters of Credit), when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other 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;; or
(c) any representation or warranty made or deemed default shall be made by or on behalf of the Borrower or any Restricted Subsidiary Guarantor in the due observance or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform performance of any covenant, condition or agreement contained in Section 5.02(a)Article VI hereof; or
(d) default shall be made by the Borrower or any Guarantor in the due observance or performance of any other covenant, 5.03 (condition or agreement to be observed or performed pursuant to the terms of this Agreement or any of the other Loan Documents and, with respect to the Borrower’s existence)Sections 5.01, 5.08 5.02 or 5.09 or in Article VI;5.10, such default shall continue unremedied for more than five (5) Business Days; or
(e) the Borrower Borrower's or any Subsidiary Guarantor, as applicable, 's Case shall fail be dismissed or converted to observe a case under Chapter 7 of the Bankruptcy Code; a trustee under Chapter 7 or perform any covenant, condition or agreement contained in this Agreement Chapter 11 of the Bankruptcy Code (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, Person having powers similar to a trustee) shall be appointed in any of the Cases and the order appointing such failure trustee shall continue unremedied for a period of not be reversed or vacated within thirty (30) days after notice thereof from the Administrative Agent entry thereof; or an application shall be filed by the Borrower or any Guarantor for the approval of any other superpriority claim (other than the Carve-Out) in any of the Cases which is pari passu with or senior to the claims of the ---- ----- Administrative Agent, the Issuing Bank, the Agent and the Lenders against the Borrower (which notice will or the Guarantors hereunder or there shall arise any such pari passu or senior superpriority claim or other ---- ----- claim; or the Order shall be given at the request of any Lender);stayed, modified, reversed or vacated; or
(f) the Borrower Bankruptcy Court shall enter an order or any Restricted Subsidiary shall fail orders granting relief from the automatic stay applicable under Section 362 of the Bankruptcy Code to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness security interest to permit foreclosure (or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect granting of a Swap Agreement; provided, further, that any default deed in lieu of foreclosure or event of default with respect to any financial maintenance covenant the like) in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason the Guarantors (other than as those assets listed on Schedule 7.01(f)) which have a result value in excess of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable $1,000,000 in accordance with its terms (or the Borrower or any Restricted Subsidiary 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)aggregate; or
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Bradlees Inc)
Xxxxxx of Default. If any Any of the following events (“Events shall be an "Event of Default”) shall occur":
(a1) If Borrower shall: fail to pay the principal of any Loan Party Notes as and when due; or fail to pay interest accruing on any Notes as and when due and such failure to pay shall continue unremedied for five (5) days after the due date of such amount; or fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof fee 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 fee or any other amount (other than an amount referred to in clause (a) of this Article) payable due under this Agreement or any other 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 the Borrower or any Restricted Subsidiary in or in connection with this Agreement or any other Loan Document or the Supplemental Fee Letter as and when due and such failure to pay shall continue unremedied for two (2) days after notice by Administrative Agent of such failure to pay; or
(2) If any amendment representation or modification hereof or thereof or waiver hereunder or thereunder, or warranty made by Borrower in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or in any other Loan Document or which is contained in any amendment certificate, document, opinion, financial or modification thereof other statement furnished at any time under or waiver thereunder, in connection with a Loan Document shall prove to have been incorrect in any material respect (on or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed of the date made;; or
(d3) the If Borrower shall fail (a) to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.02(a)2.17, 5.03 Article VII or Article VIII or (with respect b) to the Borrower’s existence)perform or observe any term, 5.08 covenant or 5.09 or agreement contained in Article VI;
(e) the Borrower VI or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement otherwise contained in this Agreement (other than those specified obligations specifically referred to elsewhere in clause (a), (b) or (d) of this ArticleSection) or any other Loan Document, or in the Supplemental Fee Letter or any other document executed by Borrower and delivered to Administrative Agent and/or the Banks in connection with the transactions contemplated hereby and such failure shall continue remain unremedied for a period of thirty (30) consecutive calendar days after notice thereof from the by Administrative Agent to Borrower thereof (or such shorter cure period as may be expressly prescribed in the applicable Loan Document); provided, however, that if any such default under clause (b) above cannot by its nature be cured within such thirty (30) day, or shorter, as the case may be, grace period and so long as Borrower shall have commenced cure within such thirty (which notice will be given 30) day, or shorter, as the case may be, grace period and shall, at all times thereafter, diligently prosecute the request same to completion, Borrower shall have an additional period, not to exceed sixty (60) days, to cure such default; in no event, however, is the foregoing intended to effect an extension of any Lender);the Maturity Date; or
(f4) the If either Borrower or any Restricted Subsidiary TCI shall fail (a) to make pay any Debt (other than the payment obligations described in paragraph (1) of this Section) in an amount equal to or greater than $10,000,000 when due (whether of principal by scheduled maturity, required prepayment, acceleration, demand, or interest and regardless of amountotherwise) in respect of or (b) to perform or observe any Material Indebtednessmaterial term, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace periodcovenant, if any, specified in the or condition under any agreement or instrument relating to any such Material Indebtedness;
(g) any event Debt, when required to be performed or condition occurs that results in any Material Indebtedness becoming due prior observed, if the effect of such failure to its scheduled maturity perform or that enables observe is to accelerate, or permits (to permit the acceleration of, after the expiration of any applicable grace or cure period and with or without the giving of notice, notice or the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become duetime, or to require both (other than in cases where, in the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result judgment of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations Required Banks, meaningful discussions likely to result in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization a waiver or other relief in respect cure of the Borrower failure to perform or any Restricted 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 observe or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the otherwise averting such acceleration are in progress between Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period obligee of sixty (60) consecutive days during which execution shall not be effectively stayedsuch Debt), the maturity of such Debt, or any action such Debt shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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, or required to be prepaid (other than by a regularly scheduled or otherwise required prepayment), 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 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 prior to the Borrower described in clause stated maturity thereof; or
(h5) If TCI, Borrower, or (iany Affiliate(s) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest Borrower to which $100,000,000 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and more in the event the Loans and other Obligations are accelerated pursuant to the preceding sentenceaggregate of Capitalization Value is attributable, the Administrative Agent shall: (a) generally not, from time to timeor be unable to, apply the proceeds constituting Collateralor shall admit in writing its inability to, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.pay its debts as such debts become due; or
Appears in 1 contract
Samples: Revolving Credit Agreement (Taubman Realty Group LTD Partnership)
Xxxxxx of Default. If any Each of the following events (is an “Events Event of Default”) shall occur” with respect to the Securities:
(a) any Loan Party shall fail failure to pay interest on any principal of any Loan Security when and as the same shall become such interest becomes due and payable, whether at the due date thereof or at a date fixed payable and such default is continued for prepayment thereof or otherwise30 days;
(b) any Loan Party shall fail failure to pay principal of (or premium including the Make-Whole Premium, if any, on) any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, Security when and as the same shall become it becomes 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 failure by or on behalf of the Borrower or any Restricted Subsidiary in or Company to make an offer in connection with a Change of Control Repurchase Event in accordance with the provisions described under Section 4.02 of this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed madeIndenture;
(d) the Borrower shall fail failure to observe or perform comply with any covenant, condition covenant or agreement contained in Section 5.02(a)this Indenture in respect of the Securities, 5.03 and such default or breach is continued for 90 days (or 30 days with respect to Section 4.32 or 150 days with respect to Section 4.09 of this Indenture; provided, however, that beginning on the Borrower’s existence)91st day the Note Parties are not in compliance with Section 4.09, 5.08 additional interest at a rate of 0.25% per annum shall become due and payable (in the same manner and at the same time as regular interest payments) on the Securities until such covenant is complied with) after there has been given to the Company a written notice specifying such default or 5.09 breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder by the Trustee or to the Company and the Trustee by the Holders of at least 25% in Article VI;
(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement principal of Outstanding Securities affected thereby (other than those specified a default in clause performance, or breach, of a covenant or agreement specifically dealt with in clauses (a), (b) or (dc) above);
(e) any Securities Guarantee ceases to be in full force and effect (other than in accordance with the terms of such Securities Guarantee or pursuant to the terms of this ArticleIndenture or other applicable Note Document) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender)Guarantor denies or disaffirms its obligations under its Securities Guarantee;
(f) the Borrower Company or any Restricted Subsidiary shall fail other Note Party pursuant to make any payment (whether of principal or interest and regardless of amount) in respect within the meaning of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;Bankruptcy Law:
(g1) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as commences a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.case,
(h2) consents to the entry of an order for relief against it in an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;,
(i3) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent consents to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary Bankruptcy Custodian of it or for a substantial part all or substantially all of its assetsproperty, or
(iv4) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make makes a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoingits creditors;
(jg) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect for 90 days and that:
(1) is for relief against the Borrower Company or any Restricted Subsidiary shall become unable, admit other Note Party as debtor in writing its inability or fail generally to pay its debts as they become due;an involuntary case,
(k2) one or more judgments for appoints a Bankruptcy Custodian of the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary Company or any combination thereof and other Note Party or a Bankruptcy Custodian for all or substantially all of the same shall remain undischarged for a period property of sixty (60) consecutive days during which execution shall not be effectively stayedthe Company, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets other Note Party, or
(3) orders the liquidation of the Borrower Company or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Note Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(oh) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15permitted by the Note Documents, the Security Documents shall for any Collateral Document after the delivery and effectiveness thereof shall reason cease to create a valid and perfected Lien, first-priority Lien (subject to the extent and in the manner required under such Permitted Collateral Document and, with the priority required by such Collateral Document, Liens) on and security interest in any material portion of the Collateral taken as having a wholefair market value in excess of $25,000,000 (in each case, subject other than in accordance with the terms of this Indenture or the terms of the Security Documents); provided that if such failure is susceptible to Liens permitted under Section 6.02 cure, no Event of Default shall arise with respect thereto until 45 days after any Officer of any Collateral Grantor becomes aware of such failure, which failure has not been cured during such time period, or (except to the extent ii) any Collateral Grantor asserts in writing that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged Lien created under the Collateral Security Documents is invalid or to file Uniform Commercial Code financing statements unenforceable; or
(i) if Petrobras (or continuation statements); then, and in every such event (any other entity that is the counterparty under the Petrobras Drilling Contract) is more than an event 120 days late with respect to the Borrower described in clause (h) or (i) making of this Section 7.01), and at any time thereafter during payment due under the continuance of such eventPetrobras Drilling Contract, the Administrative Agent may, and at failure by the request of the Required Lenders shall, by notice Collateral Rig Operator to the Borrower, 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 and actively pursue remedies 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 Petrobras Drilling Contract with respect to the Borrower described in clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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 Borrowersuch nonpayment. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided Default pursuant to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply this Section 6.01 with respect to Securities all or part of which is represented by a Global Security, a record date shall automatically and without any other action taken by any Person be set for the proceeds constituting Collateral purpose of determining the Holders of Outstanding Securities entitled to join in payments any Notice of Default, which record date shall be the close of business on the day the Trustee shall have received such Notice of Default. The Holders of Outstanding Securities on such record date (or their duly appointed agents), and only such Persons, shall be entitled to join in such Notice of Default, whether or not such Holders remain Holders after such record date; provided that, unless such Notice of Default shall have become effective by virtue of Holders of the Obligations requisite principal amount of Outstanding Securities on such record date (or their duly appointed agents) having joined in such Notice of Default prior to the day which is 90 days after such record date, such Notice of Default shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder (or duly appointed agent thereof) from giving, before or after expiration of such 90-day period, a Notice of Default contrary to or different from a Notice of Default previously given by a Holder, or from giving, after the event expiration of such period, a Notice of Default identical to a Notice of Default that has been cancelled pursuant to the Loans and other Obligations are accelerated pursuant proviso to the preceding sentence, in any of which events a record date in respect thereof shall be set pursuant to the Administrative Agent shallprovisions of this Section 6.01. However, from a Default under Section 6.01(d), (e) or (h) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the outstanding Securities (with a copy to the Trustee) notify the Company of the Default and, with respect to Section 6.01(d), (e) or (h), the Company does not cure such Default within the time specified in Section 6.01(d), (e) or (h) after receipt of such notice; provided that a notice of Default may not be given with respect to time, apply the proceeds constituting Collateralany action taken, and all other amounts received on account reported publicly or to the Holders, more than two years prior to such notice of the Obligations) in accordance with Section 4.02 of the Security AgreementDefault.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Xxxxxx of Default. If any of the following events (each, an “Events Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any the principal of any Revolving Loan shall not be paid when and as the same shall become due and payablesuch payment is due, 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 Revolving Loan, any fee or any other amount (other than an amount referred to in clause (a) of this ArticleSection 7.01) payable under this Agreement or any other Loan Document, Document shall not be paid when and as the same shall become due and payable, payable and such failure shall continue unremedied for a period of five (5i) with respect to interest, two (2) Business Days solely to the extent such failure is as a result of a technical or administrative error and (ii) for any fee or any other amount (other than an amount referred to in clause (a) or (b)(i) of this Section 7.01), two (2) Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Restricted Subsidiary other Loan Party in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made (or or, with respect to any representation or warranty which is already qualified as to by materiality or by reference to Material Adverse Effect shall prove to have been incorrect a material adverse change or material adverse effect standard, in any respect) when made or deemed made);
(d) the Borrower any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a)5.02, 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 5.04, 5.11, 5.14, 5.22 or in Article VI;
(e) (i) any Loan Party shall fail to observe or perform the covenant in Section 5.22 and such failure shall continue unremedied for a period of five (5) Business Days, (ii) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(a), Section 5.01(b) or Section 5.01(c), and such failure shall continue unremedied for a period of ten (10) Business Days or (iii) the Borrower or any Subsidiary Guarantorother Loan Party, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b), (d) or (de)(i) or (ii) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after the earlier of (A) notice thereof from the Administrative Agent to the Borrower or (which notice will be given at B) a Responsible Officer of the request Borrower or any other Loan Party becoming aware of any Lender)such default;
(f) the Borrower or any Restricted Subsidiary of the Borrower shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure (after giving effect to pay shall continue after the any applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtednessperiods);
(g) other than as specified in clause (f) of this Article, any event Loan Party defaults under any Material Indebtedness (other than, with respect to Material Indebtedness consisting of a Swap Agreement, termination events or condition occurs equivalent events pursuant to the terms of such Swap Agreement not arising as a result of a default by any Loan Party thereunder) that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary of the Borrower or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary of the Borrower or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted Subsidiary of the Borrower shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this ArticleSection 7.01, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary of the Borrower 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, or (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoingcreditors;
(j) the Borrower or any Restricted Subsidiary of the Borrower shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more final judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) 10,000,000 shall be rendered against the Borrower, Borrower or any Restricted Subsidiary of the Borrower or any combination thereof (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary of the Borrower to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, in the opinion of the Administrative Agent, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effectliability of the Loan Parties in an aggregate amount exceeding $10,000,000;
(m) a Change in Control shall occur;
(n) the occurrence of a material adverse change in the business, operations, properties, liabilities or financial condition of the Borrower and its Subsidiaries, taken as a whole;
(o) the Borrower and its Subsidiaries, taken as a whole, shall cease normal business operations;
(p) any Loan Party shall cease, suspend or Dispose of its core business without the consent of the Required Lenders;
(q) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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 of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to any of the Borrower Loan Parties described in clause (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 (if not already terminated), and thereupon the Commitments shall terminate immediately, and (ii) declare the Revolving 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 Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder 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 Borrowereach Loan Party; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Section 7.01, the Commitments shall automatically terminate and the principal of the Revolving Loans then outstanding, together with accrued interest thereon thereon, any break funding payments required by Section 2.18 with respect thereto and all fees and other Obligations accrued hereunder and under the other 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 Borrowereach Loan Party. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shallshall (subject to its rights and protections under Article VIII), (i) exercise any rights and remedies provided to the Administrative Agent Agent, as applicable, under the Loan Documents or at law or equity and (ii) at such time or times as equity, including all remedies provided under the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security AgreementUCC.
Appears in 1 contract
Xxxxxx of Default. If The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a “Events Lease Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal the occurrence of any Loan 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 otherwisePayment Default;
(b) any Loan Party Lessee shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) maintain insurance as required by Article XIII of this Article) payable under this Agreement or any other 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 DaysLease;
(c) any Any representation or warranty made by Lessee herein or deemed made by Lessee, any Guarantor or on behalf of the Borrower Ground Lessor (or any Restricted Subsidiary in or of their respective officers) in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, Lease or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Operative Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower Parent Guarantor shall fail to perform or observe or perform any covenantterm, condition covenant or agreement contained in Section 5.02(a), 5.03 Sections 8(d) of the Guaranty (with respect to the Borrower’s existenceParent Guarantor, Lessee or any other Guarantor only), 5.08 8(i) of the Guaranty (other than clauses (v) and (vi) thereof), 9 of the Guaranty or 5.09 10 of the Guaranty, or (ii) the Parent Guarantor, any other Guarantor, Lessee or Ground Lessor shall fail to perform or observe any other term, covenant or agreement contained in Article VIthe Operative Documents on their respective 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 Parent Guarantor, such other Guarantor, Lessee or Ground Lessor, as applicable, by the Administrative Agent or Lessor;
(e) the Borrower Parent Guarantor or any Subsidiary Guarantor, as applicable, of its Subsidiaries shall fail to observe pay any principal of or perform premium or interest on any covenant, condition Debt that is outstanding in a principal or agreement contained net amount of at least $250,000,000 in this Agreement the aggregate (other than those specified in clause but excluding Debt outstanding hereunder) of the Parent Guarantor or such Subsidiary (aas the case may be), when the same becomes due and payable (b) whether by scheduled maturity, required prepayment, acceleration, demand or (d) of this Article) or any other Loan Documentotherwise), and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material IndebtednessDebt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or bothf) the holder or holders of any Material Indebtedness Parent Guarantor or any trustee or agent on of its or their behalf to cause Subsidiaries (other than any Material Indebtedness to of its Immaterial Subsidiaries) shall generally not pay its debts as such debts become due, or shall admit in writing its inability to require pay its debts generally, or shall make a general assignment for the prepayment, repurchase, redemption benefit of creditors; or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced instituted by or an involuntary petition shall be filed against the Parent Guarantor or any of its Subsidiaries (other than any of its Immaterial Subsidiaries) seeking (i) 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 other relief in respect of the Borrower or any Restricted Subsidiary or its debtsdebtors, or seeking the entry of a substantial part of its assets, under any Federal, state an order for relief or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator custodian or other similar official for the Borrower or any Restricted Subsidiary it or for a any substantial part of its assets, property and, in the case of any such caseproceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or petition shall continue undismissed unstayed for sixty (60) days a period of 60 days, or an order or decree approving or ordering any of the foregoing shall be entered;
actions sought in such proceeding (i) including, without limitation, the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other entry of an order for relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution ofagainst, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator custodian or other similar official for the Borrower or any Restricted Subsidiary for, it or for a any substantial part of its assets, property) shall occur; or the Parent Guarantor or any of its Subsidiaries (ivother than any of its Immaterial Subsidiaries) 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) shall take any corporate action for the purpose of effecting to authorize any of the foregoing;actions set forth above in this subsection (f); or
(jg) the Borrower judgments or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments orders for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) 250,000,000 in the aggregate shall be rendered against the Borrower, any Restricted Subsidiary Parent Guarantor or any combination thereof of its Subsidiaries and the same either (i) enforcement proceedings shall remain undischarged for a have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of sixty (60) 30 consecutive days during which execution a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be effectively stayedin effect; provided, however, that any such judgment or order shall not be an Event of Default under this 16.1(g) if and for so long as (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, which shall be rated at least “A-” by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order or (iii) such judgment or order shall have been paid; or
(h) the Parent Guarantor or any of its ERISA Affiliates shall incur, or any action shall be legally taken by a judgment creditor reasonably likely to attach or levy upon any assets incur liability in excess of $250,000,000 in the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than aggregate as a result of an act one or failure to act more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the Parent Guarantor or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer Plan; or
(i) the Guaranty provided by any Credit Party) ceases to be valid, binding and enforceable Guarantor shall for any reason cease (other than in accordance with its terms the provisions of the applicable Guaranty) to be valid and binding on such Guarantor, or any Guarantor shall so state in writing; or
(j) (i) a Change of Control shall have occurred; or (ii) Lessee or Ground Lessor shall cease to be a wholly owned Subsidiary of Parent Guarantor, or any Guarantor (other than Parent Guarantor) shall cease to be a wholly owned Subsidiary of Parent Guarantor; or
(k) (i) any Operative Document or the Borrower or security interest and lien granted under any Restricted Subsidiary shall challenge the enforceability of any Loan Operative 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 (except in accordance with its terms), in whole or in part, terminates, ceases to be effective or ceases to be the legal, valid and binding enforceable obligation of any Guarantor, Lessee, Ground Lessor or any of their respective Affiliates, as the case may be, or (ii) any Guarantor, Lessee, Ground Lessor or any of their respective Affiliates, directly or indirectly contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; (iii) the security interest and lien securing Lessee’s obligations under the Operative Documents, in whole or in part, ceases to be a perfected first priority security interest and lien (subject only to Permitted Liens) or (iv) any default exists under the Ground Lease beyond the applicable cure period provided therein or the Ground Lease is otherwise terminated or the lessee or obligor thereunder receives notice that it is or will be otherwise terminated; or
(ol) subject Lessee shall fail to Sections 5.09 use commercially reasonable efforts to sell the Leased Property as and 5.11, when required by and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof or shall cease fail to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion satisfy each of the Collateral taken as a wholeterms, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure covenants, conditions and agreements set forth at Articles XX and XXI in connection with and following its exercise of the Administrative Agent to maintain possession Sale Option, including each of certificates actually delivered to it representing Equity Interests Lessee’s obligations at Sections 20.1 and 21.1; or
(m) a judicial or promissory notes pledged under the Collateral Documents nonjudicial forfeiture or to file Uniform Commercial Code financing statements or continuation statements); then, seizure proceeding is commenced by a Governmental Authority and in every such event (other than an event remains pending with respect to the Borrower described in clause (h) Leased Property or (i) any part thereof, on the grounds that the Leased Property or any part thereof had been used to commit or facilitate the commission of this Section 7.01)a criminal offense by any Person, and at including any time thereafter during the continuance of such eventtenant, the Administrative Agent maypursuant to any Law, and at the request of the Required Lenders shall, by notice to the Borrower, 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 and including under the other Loan DocumentsControlled Substances Act or the Civil Asset Forfeiture Reform Act, regardless of whether or not the Leased Property shall become due and payable immediately, without presentment, demand, protest subject to forfeiture or other notice of any kind, all of which are hereby waived by the Borrowerseizure in connection therewith; and in case of any event with respect to the Borrower described in clause or
(hn) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, there 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 have occurred an Event of DefaultDefault under, and as defined in, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security AgreementEquipment Lease Operative Documents.
Appears in 1 contract
Xxxxxx of Default. If any Any one or more of the following events (shall constitute an “Events Event of Default”) shall occur” hereunder:
(a) any Loan Party shall fail to pay any principal of any Loan default in the payment when and as the same shall become due and payable, (whether at the due date stated maturity thereof or at a date fixed any other time provided for prepayment thereof in this Agreement) of all or otherwise;
(b) any Loan Party shall fail to pay any part of the principal of or interest on any Loan or any fee other Obligation payable hereunder or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document;
(b) default in the observance or performance of any covenant set forth in Sections 6.1, when and as 6.4, 6.11, 6.12, 6.13, 6.14, 6.15, 6.20, 6.21, 6.22, 6.23 or 6.25 hereof or of any provision in any Loan Document dealing with the same shall become due and payableuse, and such failure shall continue unremedied for a period disposition or remittance of five (5) Business Daysthe proceeds of Collateral or requiring the maintenance of insurance thereon;
(c) default in the observance or performance of any other provision hereof or of any other Loan Document which is not remedied within 30 days after the earlier of (i) the date on which such default shall first become known to any officer of the Borrower or (ii) written notice of such default is given to the Borrower by the Administrative Agent;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed made making thereof;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or any of the Collateral Documents shall for any reason fail to create a valid and perfected first priority Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms thereof, or on behalf any Subsidiary takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder;
(f) default shall occur under any (i) Indebtedness of the Borrower or any Restricted Subsidiary of its Subsidiaries aggregating in excess of $1,000,000, or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in connection with this Agreement fact accelerated), or any other Loan Document such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or any amendment otherwise) after giving effect to applicable grace or modification hereof or thereof or waiver hereunder or thereundercure periods, if any, or in (ii) any report, certificate, financial statement or other document furnished pursuant to or in connection with this Hedge Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;
(e) of the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform of its Subsidiaries with any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) Lender or any other Loan Document, and such failure shall continue unremedied for Affiliate of a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event final judgment or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity judgments, writ or that enables writs or permits (after the expiration warrant or warrants of any applicable grace or cure period and with or without the giving of noticeattachment, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee similar process or agent on processes, shall be entered or filed against the Borrower or any of its or their behalf to cause any Material Indebtedness to become dueSubsidiaries, or against any of its Property, in an aggregate amount in excess of $1,000,000 (except to require the prepaymentextent fully and unconditionally covered by insurance pursuant to which the insurer has accepted liability therefor in writing and except to the extent fully and unconditionally covered by an appeal bond, repurchase, redemption for which the Borrower or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as such Subsidiary has established in accordance with GAAP a result of the voluntary sale cash or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant Cash Equivalent reserve in the Revolving Credit Agreement shall not constitute an Event amount of Default with respect to any Loans unless such judgment, writ or warrant), and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or of its debtsSubsidiaries, or of a substantial part any member of its assetsControlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $1,000,000 which it shall have become liable to pay to the PBGC or to a Plan under any FederalTitle IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $1,000,000 (collectively, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (iia “Material Plan”) the appointment shall be filed under Title IV of a receiver, trustee, custodian, sequestrator, conservator or similar official for ERISA by the Borrower or any Restricted Subsidiary or for a substantial part of its assetsSubsidiaries, andor any other member of its Controlled Group, in any such caseplan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any of its Subsidiaries, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or petition a condition shall continue undismissed for sixty (60) days or an order or exist by reason of which the PBGC would be entitled to obtain a decree approving or ordering adjudicating that any of the foregoing shall Material Plan must be enteredterminated;
(i) the Borrower or any Restricted Subsidiary Change of Control shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted 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 foregoingoccur;
(j) the Borrower or any Restricted Subsidiary of its Subsidiaries shall become unable(i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability or fail generally to pay pay, its debts generally as they become due;, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any action in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 7.1(k) hereof; or
(k) one a custodian, receiver, trustee, examiner, liquidator or more judgments similar official shall be appointed for the payment Borrower or any of money in an aggregate amount in excess of $50,000,000 (net its Subsidiaries, or any substantial part of any amount covered by insurance by an insurance company that has not disclaimed coverage thereforof its Property, or a proceeding described in Section 7.1(j)(v) shall be rendered instituted against the Borrower, any Restricted Subsidiary Borrower or any combination thereof Subsidiary, and the same shall remain such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement60 days.
Appears in 1 contract
Xxxxxx of Default. If any of the following events (each an “Events Event of Default”) shall occuroccur and be continuing:
(a) any Loan Party The Borrower shall fail to pay any principal of any Loan on the Business Day when and as the same shall become becomes due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Loan Party The Borrower shall fail to pay any interest on any Loan the Loan, or any fee or make any other amount (payment of fees or other than an amount referred to in clause (a) of this Article) payable amounts under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Document within three (53) Business DaysDays after such payment is due;
(c) any Any representation or warranty made or deemed made by or on behalf of the Borrower in any Loan Document or by the Borrower (or any Restricted Subsidiary in or of its officers) in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d)
(i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.06, Section 5.01(b) (with respect to its legal existence of the Borrower), or Section 5.02, or in any Collateral Document; or
(ii) the Borrower shall fail to perform or observe or perform any covenantother term, condition covenant or agreement contained in Section 5.02(a), 5.03 any Loan Document on its part to be performed or observed (with respect other than the failure to satisfy any covenant or agreement specified in clause (d)(i) above or a default specified in paragraph (a) or (b) above) if such failure shall remain unremedied for twenty (20) or more days after the earlier of the date on which (A) any officer of the Borrower becomes aware of such failure or (B) written notice thereof shall have been given to the Borrower’s existence)Borrower by the Lender, 5.08 or 5.09 or provided that, notwithstanding anything to the contrary in Article VI;this Agreement, a breach by the Borrower of Section 5.02(g) shall not constitute an Event of Default.
(e) The Borrower, the Borrower Parent or any Subsidiary Guarantor, as applicable, of the Borrower’s Subsidiaries shall fail to observe pay any principal of or perform premium or interest on any covenantDebt that is outstanding in a principal or notional amount of the lower of (x) US$15,000,000 and (y) an amount equal to 3% of the value of shareholders’ equity, condition as determined by the Administrative Agent (or agreement contained its equivalent in this Agreement other currencies) when the same becomes due and payable (other than those specified in clause (awhether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material IndebtednessDebt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause such Debt to mature; or any such Debt 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 Debt shall be required to be made, in each case prior to the stated maturity thereof;
(f) An Insolvency Event occurs with respect to the Borrower, the Parent or any of the Borrower’s Subsidiaries;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking Any (i) liquidation, reorganization monetary judgments or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of U.S. $50,000,000 20,000,000 (net or its equivalent in other currencies) in the aggregate shall be rendered against either of the Borrower, the Parent or any amount covered by insurance by an insurance company that has not disclaimed coverage thereforof the Borrower’s Subsidiaries, or (ii) non-monetary judgment or order shall be rendered against the Borrower, any Restricted Subsidiary the Parent or any combination thereof and of the same Borrower’s Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and, in any case, either (x) enforcement proceedings shall remain undischarged for a have been commenced by any creditor upon such judgment or order or (y) there shall be any period of sixty thirty (6030) or more consecutive days during which execution a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgmentin effect;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security Agreement.
Appears in 1 contract
Samples: Credit Agreement (Hut 8 Corp.)
Xxxxxx of Default. If any Any of the following events (“Events and the passage of Default”) any applicable notice and cure periods shall occurconstitute an Event of Default hereunder:
(a) any Loan Party shall fail to pay any principal of any Loan 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 fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other 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 Any representation or warranty made or deemed made by or on behalf of the Borrower or any Restricted Subsidiary in Borrowers pursuant to or in connection with this Agreement Credit Agreement, the Notes, the Environmental Certificate, or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document writing furnished by Borrowers in connection herewith, shall prove to be false, incorrect or misleading in any materially adverse aspect as of the date when made unless cured within thirty (30) days of 100 the date when made if such representation or warranty is capable of being cured.
(b) Borrowers shall have defaulted in the payment of any interest on the Note or Swingline Note for a period of five (5) days from the date such payment is due or shall have defaulted in the payment of any principal on the Note when due;
(c) Any of the Security Documentation or any provision thereof shall cease to be in full force and effect in any material respect or shall cease to give the Agent Bank in any material respect the liens, rights, powers and privileges purported to be created thereby or the Borrowers shall default in the due performance or observance of any term, covenant or agreement on their part to be performed or observed pursuant to the Security Documentation for a period of thirty (30) days after written notice thereof is delivered to Borrowers by Agent Bank (or such shorter period following such notice as may be specified in connection with any Loan Document);
(d) Borrowers shall have defaulted in the payment of any late charge, Commitment Fees, Agent's Fees, expenses, indemnities or any other amount owing under any Loan Document for a period of five (5) days after notice thereof to Borrowers from Agent Bank;
(e) Borrowers or any Restricted Subsidiary shall fail duly and punctually to perform or comply with: (i) any term, covenant, condition or promise contained in Sections 5.11, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11, 6.13 or 6.17, or (ii) any other term, covenant, condition or promise contained in this Agreement Credit Agreement, the Notes, the Deeds of Trust or any other Loan Document or and, in the case of any amendment or modification thereof or waiver thereunderterm, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(apromise covered by this clause (ii), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;
(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied thirty (30) days after written notice thereof is delivered to Borrowers by Agent Bank (or such shorter period following such notice as may be specified in any Loan Document).
(f) Borrowers, or either of them, or any Restricted Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to it or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official, for all or substantially all of its property, or shall consent to any such relief or to the appointment or taking possession by any such official in any involuntary case or other proceeding against it;
(g) An involuntary case or other proceeding shall be commenced against Borrowers, or either of them, or any Restricted Subsidiary seeking liquidation, reorganization or other relief with respect to itself or its debts under the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or 101 hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official, for all or substantially all of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of ninety (90) days;
(h) Borrowers or either of them, or any Restricted Subsidiary makes an assignment of all or substantially all of their assets for the benefit of its creditors;
(i) Borrowers shall fail to make any payment when due (whether by scheduled maturity, required prepayment, offer to purchase, redemption, acceleration, demand or otherwise, in each case beyond the grace period provided with respect to such Indebtedness) on any Indebtedness (other than any Indebtedness under this Credit Agreement), if the aggregate amount of such Indebtedness is Five Million Dollars ($5,000,000.00), or more, or any breach, default or event of default shall occur, or any other event shall occur or condition shall exist, under any instrument, agreement or indenture pertaining thereto if the effect thereof is to accelerate, the maturity of any such Indebtedness; or any such Indebtedness shall be declared to be due and payable or shall be required to be prepaid, purchased or redeemed (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof, or the holder of any lien in any amount, shall commence foreclosure of such lien upon property of Borrowers having a value in excess of Five Million Dollars ($5,000,000.00) and such foreclosure shall continue against such property to a date less than thirty (30) days prior to the date of the proposed foreclosure sale;
(j) The occurrence of any event of default, beyond any applicable grace period, under the terms of any agreement with any Lender in connection with a Secured Interest Rate Hedge relating to the Credit Facility;
(k) The occurrence of any Reportable Event as defined under the ERISA, which Agent Bank determines in good faith constitutes proper grounds for the termination of any employee pension benefit plan or pension plan of Borrowers covered by ERISA by the Pension Benefit Guaranty Corporation or for the appointment by an appropriate United States District Court of a trustee to administer any such plan, should occur and should continue for thirty (30) days after written notice of such determination shall have been given to Borrowers by Agent Bank;
(l) Commencement against Borrowers, any time after the execution of this Credit Agreement, of any litigation which results in the entry of one or more judgments, orders or decrees against the Borrowers, or any of them, in an aggregate amount in excess of Ten Million Dollars ($10,000,000.00) (to the extent not covered by insurance) and are not discharged and either (i) an enforcement proceeding is commenced by any creditor upon any such judgment which is not stayed for five (5) consecutive calendar days or (ii) there is any period of sixty (60) consecutive days during which a stay of enforcement of 102 such judgments, orders or decrees, by reason of a pending appeal or otherwise, is not in effect;
(m) The loss or suspension, other than on account of force majeure, of TPC's unrestricted Gaming Permits or the failure of TPC to maintain gaming activities in the Hotel/Casino Facilities other than on account of force majeure at least to the same general extent as is presently conducted thereon for a period in excess of thirty (30) consecutive days;
(n) Any order, judgment or decree shall be entered against any Borrower decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of thirty (30) days, or any Borrower shall otherwise dissolve or cease to exist, other than as permitted under Section 6.11;
(o) PRMA sells, transfers, assigns, hypothecates or otherwise alienates its interest in all or any portion of the common voting stock of TPC (subject to this provision being first approved by the Nevada Gaming Commission), other than in connection with a Stock Pledge (Gaming);
(p) The occurrence of any Change in Control;
(q) TPC shall fail to perform for a period in excess of thirty (30) consecutive days any material obligation which it may have under the BLM Right of Way;
(r) The failure of TPC to timely perform any material obligation which it may have under the P/S Land Lease or any of the Airspace Leases, which in either case continues beyond the expiration of any applicable cure period; or
(s) Any Subsidiary Guaranty shall cease to be in full force or effect in any material respect, or any Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor's obligations under the Subsidiary Guaranty, or such Subsidiary Guarantor shall default for a period of thirty (30) days after notice thereof from Agent Bank in the Administrative Agent to the Borrower (which notice will be given at the request due performance or observance of any Lender);
(f) the Borrower term, covenant or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder part to be immediately due and payable.
(h) an involuntary proceeding shall be commenced performed or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted 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) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary 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
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a valid and perfected Lien, to the extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any material portion of the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (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, 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 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 clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other 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, the Administrative Agent may, and at the request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations (and in the event the Loans and other Obligations are accelerated observed pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the Obligations) in accordance with Section 4.02 of the Security AgreementSubsidiary Guaranty.
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