Consequences of an Event of Default. Upon the occurrence and during the continuation of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times: (a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue; (b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder; (c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents; (d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure; (e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and (f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Appears in 2 contracts
Samples: Continuing Covenant Agreement (SemGroup Corp), Continuing Covenant Agreement (SemGroup Corp)
Consequences of an Event of Default. Upon the occurrence and during the continuation of 11.1 If an Event of Default occurs in relation to either Party then paragraphs 11.2 to 11.7 below shall apply.
11.2 The Parties’ delivery and payment obligations (and any other than obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the time such Event of Default occurs (the date of which shall be the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions.
(a) The Default Market Value of the Equivalent Securities and Equivalent Non- Cash Collateral to be delivered and the amount of any Cash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by each Party shall be established by the Non-Defaulting Party in accordance with paragraph 11.4 and deemed as at the Termination Date.
(b) On the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each Party to the other under this Agreement (on the basis that each Party’s claim against the other in respect of delivery of Equivalent Securities or Equivalent Non-Cash Collateral equal to the Default Market Value thereof) and the sums due from one Party shall be set off against the sums due from the other and only the balance of the account shall be payable (by the Party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any sum not denominated in the Base Currency shall be converted into the Base Currency at the Spot Rate prevailing at such dates and times determined by the Non-Defaulting Party acting reasonably.
(c) If the balance under sub-paragraph (b) above is payable by the Non-Defaulting Party and the Non-Defaulting Party had delivered to the Defaulting Party a Letter of Credit, the Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(d) If the balance under sub-paragraph (b) above is payable by the Defaulting Party and the Defaulting Party had delivered to the Non-Defaulting Party a Letter of Credit, the Non-Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(e) In all other circumstances, where a Letter of Credit has been provided to a Party, such Party shall deliver for cancellation the Letter of Credit so provided.
11.3 For the purposes of this Agreement, the Default Market Value of any Equivalent Collateral in the form of a Letter of Credit shall be zero and of any Equivalent Securities or any other Equivalent Non-Cash Collateral shall be determined in accordance with paragraphs 11.4 to 11.6 below, and for this purpose:
(a) the Appropriate Market means, in relation to securities of any description, the market which is the most appropriate market for securities of that description, as determined by the Non-Defaulting Party;
(b) the Default Valuation Time means, in relation to an Event of Default, the close of business in the Appropriate Market on the fifth dealing day after the day on which that Event of Default with occurs or, where that Event of Default is the occurrence of an Act of Insolvency in respect of which under paragraph 10.1(d) no notice is required from the Non-Defaulting Party in order for such event to any Loan constitute an Event of Default, the close of business on the fifth dealing day after the day on which the Non-Defaulting Party described in paragraph (g) or (h) first became aware of Section 7.01), and at any time thereafter during the continuation occurrence of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Appears in 2 contracts
Samples: Global Master Securities Lending Agreement, Global Master Securities Lending Agreement
Consequences of an Event of Default. Upon the occurrence and during the continuation of 11.1 If an Event of Default occurs in relation to either Party then paragraphs 11.2 to 11.7 below shall apply.
11.2 The Parties’ delivery and payment obligations (and any other than obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the time such Event of Default occurs (the date of which shall be the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions.
(a) The Default Market Value of the Equivalent Securities and Equivalent Non- Cash Collateral to be delivered and the amount of any Cash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by each Party shall be established by the Non-Defaulting Party in accordance with paragraph 11.4 and deemed as at the Termination Date.
(b) On the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each Party to the other under this Agreement (on the basis that each Party’s claim against the other in respect of delivery of Equivalent Securities or Equivalent Non-Cash Collateral equal to the Default Market Value thereof) and the sums due from one Party shall be set off against the sums due from the other and only the balance of the account shall be payable (by the Party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any sum not denominated in the Base Currency shall be converted into the Base Currency at the spot rate prevailing at such dates and times determined by the Non-Defaulting Party acting reasonably.
(c) If the balance under sub-paragraph (b) above is payable by the Non-Defaulting Party and the Non-Defaulting Party had delivered to the Defaulting Party a Letter of Credit, the Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(d) If the balance under sub-paragraph (b) above is payable by the Defaulting Party and the Defaulting Party had delivered to the Non-Defaulting Party a Letter of Credit, the Non-Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(e) In all other circumstances, where a Letter of Credit has been provided to a Party, such Party shall deliver for cancellation the Letter of Credit so provided.
11.3 For the purposes of this Agreement, the Default Market Value of any Equivalent Collateral in the form of a Letter of Credit shall be zero and of any Equivalent Securities or any other Equivalent Non-Cash Collateral shall be determined in accordance with paragraphs 11.4 to 11.6 below, and for this purpose:
(a) the Appropriate Market means, in relation to securities of any description, the market which is the most appropriate market for securities of that description, as determined by the Non-Defaulting Party;
(b) the Default Valuation Time means, in relation to an Event of Default, the close of business in the Appropriate Market on the fifth dealing day after the day on which that Event of Default with occurs or, where that Event of Default is the occurrence of an Act of Insolvency in respect of which under paragraph 10.1(d) no notice is required from the Non-Defaulting Party in order for such event to any Loan constitute an Event of Default, the close of business on the fifth dealing day after the day on which the Non-Defaulting Party described in paragraph (g) or (h) first became aware of Section 7.01), and at any time thereafter during the continuation occurrence of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Appears in 2 contracts
Samples: Global Master Securities Lending Agreement, Global Master Securities Lending Agreement
Consequences of an Event of Default. Upon If an Event of Default occurs under Clause 6A of this Agreement, your and IBIE’s payment and delivery obligations in respect of each Securities Loan shall be accelerated so as to require performance thereof at the occurrence time such Event of Default occurs (the date of which shall be the “ Termination Date”) so that performance of such delivery and during payment obligations shall be effected only in accordance with this paragraph 8:
a. the continuation Market Value (as defined below) of the Equivalent Securities to be delivered by IBIE and the amount of any cash to be paid by you shall be established by IBIE as of the Termination Date;
b. on the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each party to the other and the sums due from you shall be set off against the sums due from IBIE and only the balance of the account shall be payable (by the party having the claim valued at the lower amount pursuant to paragraph (a) above) and such balance shall be payable on the next following business day after such account has been taken and such sums have been set off in accordance with this paragraph;
c. in addition, you shall be liable to IBIE for the amount of all reasonable legal and other professional expenses incurred by IBIE in connection with or as a consequence of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, together with interest thereon at the request of the Required Bondholders, shall, a rate as determined by notice IBIE acting reasonably and notified to the Obligor and Trustee, take you. Interest will accrue daily on a compound basis; and
d. any or all of the following actions, at the same or different times:
(a) amount payable by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds you pursuant to this paragraph (b), 8 shall be an obligation that is secured by the pledge and (ii) the occurrence of any event with respect lien granted by you pursuant to any Loan Party described in paragraph (g) or (hClause 4B(i) of Section 7.01, the Obligor pays to the Trustee for the benefit this Agreement. The “Market Value” of the Bondholder Parties, an amount equal to Equivalent Securities shall be the amount which, in the reasonable opinion of all outstanding Obligations IBIE, represents their fair market value, having regard to such pricing sources and methods (includingwhich may include, without limitation, available prices for securities with similar maturities, terms and credit characteristics as the outstanding principal ofrelevant Equivalent Securities) as IBIE considers appropriate, and interest onless all reasonable costs, each Bond commissions (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”internal commissions), then upon receipt fees and expenses (including any mark-up or mark-down or premium paid for guaranteed delivery) incurred or reasonably anticipated in connection with the purchase or sale of such amounts by securities. For the Trustee and notice to the Trustee from the Obligor (which notice purposes of this calculation, any sum not denominated in EUR shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, converted into EUR at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent spot rate prevailing at such dates and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenturetimes determined by IBIE acting reasonably.
Appears in 2 contracts
Samples: Customer Agreement, Customer Agreement
Consequences of an Event of Default. 16.4.1 Upon the occurrence and during the continuation of an Event of Default that has not been cured in accordance with Clause 16.4.2, the Party not in default (other than an “Non-Defaulting Party”) shall be entitled to the rights and remedies as set out in this Clause 16.4.
16.4.2 The Non-Defaulting Party shall have the right to give a written notice (“Default Notice”) to the Party in default (the “Defaulting Party”)setting out (i) details of the occurrence of the Event of Default with respect in relation to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the IndentureDefaulting Party; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) requiring the occurrence Defaulting Party to cure such default within a period of thirty (30) Business Days from the date of the Default Notice.
16.4.3 In the event the Defaulting Party fails to remedy the default within a period of thirty (30) Business Days from the receipt of Default Notice, for any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01reason whatsoever, the Obligor pays Non-Defaulting Party shall have the right (but not the obligation) to terminate this Agreement, and also, either:
a. make a call upon the Trustee for the benefit Defaulting Party, requiring it to sell all of the Bondholder PartiesShares held by such Defaulting Party, an amount subject to Applicable Law, at a price equal to fair market value with a ten percent (10%) discount on such fair market value to be determined by an independent valuer appointed by the amount of Non-Defaulting Party; or
b. require the Defaulting Party to acquire all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts Shares held by the Trustee and notice Non- Defaulting Party, subject to the Trustee from the Obligor Applicable Law, at a price equal to fair market value with a ten percent (which notice shall 10%) premium on such fair market value to be acknowledged determined by an independent valuer appointed by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the IndentureNon-Defaulting Party.
Appears in 1 contract
Samples: Joint Venture Agreement (Experience Investment Corp.)
Consequences of an Event of Default. Upon If an Event of Default occurs under Clause 6A of this Agreement, your and IBIE’s payment and delivery obligations in respect of each Securities Loan shall be accelerated so as to require performance thereof at the occurrence time such Event of Default occurs (the date of which shall be the “ Termination Date”) so that performance of such delivery and during payment obligations shall be effected only in accordance with this paragraph 8:
a. the continuation Market Value (as defined below) of the Equivalent Securities to be delivered by IBIE and the amount of any cash to be paid by you shall be established by IBIE as of the Termination Date;
b. on the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each party to the other and the sums due from you shall be set off against the sums due from IBIE and only the balance of the account shall be payable (by the party having the claim valued at the lower amount pursuant to paragraph (a) above) and such balance shall be payable on the next following business day after such account has been taken and such sums have been set off in accordance with this paragraph;
c. in addition, you shall be liable to IBIE for the amount of all reasonable legal and other professional expenses incurred by IBIE in connection with or as a consequence of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, together with interest thereon at the request of the Required Bondholders, shall, a rate as determined by notice IBIE acting reasonably and notified to the Obligor and Trustee, take you. Interest will accrue daily on a compound basis; and
d. any or all of the following actions, at the same or different times:
(a) amount payable by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds you pursuant to this paragraph (b), and (ii) 8 shall be an obligation that is secured by the occurrence of any event with respect security interest granted by you pursuant to any Loan Party described in paragraph (g) or (hClause 4B(i) of Section 7.01, the Obligor pays to the Trustee for the benefit this Agreement. The “Market Value” of the Bondholder Parties, an amount equal to Equivalent Securities shall be the amount which, in the reasonable opinion of all outstanding Obligations IBIE, represents their fair market value, having regard to such pricing sources and methods (includingwhich may include, without limitation, available prices for securities with similar maturities, terms and credit characteristics as the outstanding principal ofrelevant Equivalent Securities) as IBIE considers appropriate, and interest onless all reasonable costs, each Bond commissions (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”internal commissions), then upon receipt fees and expenses (including any mark-up or mark-down or premium paid for guaranteed delivery) incurred or reasonably anticipated in connection with the purchase or sale of such amounts by securities. For the Trustee and notice to the Trustee from the Obligor (which notice purposes of this calculation, any sum not denominated in EUR shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, converted into EUR at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent spot rate prevailing at such dates and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenturetimes determined by IBIE acting reasonably.
Appears in 1 contract
Samples: Customer Agreement
Consequences of an Event of Default. Upon the occurrence and during the continuation of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.. 100
Appears in 1 contract
Samples: Continuing Covenant Agreement
Consequences of an Event of Default. Upon If an Event of Default occurs under Clause 6A of this Agreement, your and IBIE’s payment and delivery obligations in respect of each Securities Loan shall be accelerated so as to require performance thereof at the occurrence time such Event of Default occurs (the date of which shall be the “Termination Date”) so that performance of such delivery and during payment obligations shall be effected only in accordance with this paragraph 8:
a. the continuation Market Value (as defined below) of the Equivalent Securities to be delivered by IBIE and the amount of any cash to be paid by you shall be established by IBIE as of the Termination Date;
b. on the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each party to the other and the sums due from you shall be set off against the sums due from IBIE and only the balance of the account shall be payable (by the party having the claim valued at the lower amount pursuant to paragraph (a) above) and such balance shall be payable on the next following business day after such account has been taken and such sums have been set off in accordance with this paragraph;
c. in addition, you shall be liable to IBIE for the amount of all reasonable legal and other professional expenses incurred by IBIE in connection with or as a consequence of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, together with interest thereon at the request of the Required Bondholders, shall, a rate as determined by notice IBIE acting reasonably and notified to the Obligor and Trustee, take you. Interest will accrue daily on a compound basis; and
d. any or all of the following actions, at the same or different times:
(a) amount payable by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds you pursuant to this paragraph (b), 8 shall be an obligation that is secured by the pledge and (ii) the occurrence of any event with respect lien granted by you pursuant to any Loan Party described in paragraph (g) or (hClause 4B(i) of Section 7.01, the Obligor pays to the Trustee for the benefit this Agreement. The “Market Value” of the Bondholder Parties, an amount equal to Equivalent Securities shall be the amount which, in the reasonable opinion of all outstanding Obligations IBIE, represents their fair market value, having regard to such pricing sources and methods (includingwhich may include, without limitation, available prices for securities with similar maturities, terms and credit characteristics as the outstanding principal ofrelevant Equivalent Securities) as IBIE considers appropriate, and interest onless all reasonable costs, each Bond commissions (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”internal commissions), then upon receipt fees and expenses (including any mark-up or mark-down or premium paid for guaranteed delivery) incurred or reasonably anticipated in connection with the purchase or sale of such amounts by securities. For the Trustee and notice to the Trustee from the Obligor (which notice purposes of this calculation, any sum not denominated in EUR shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, converted into EUR at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent spot rate prevailing at such dates and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenturetimes determined by IBIE acting reasonably.
Appears in 1 contract
Samples: Customer Agreement
Consequences of an Event of Default. Upon the occurrence and during the continuation of 11.1 If an Event of Default occurs in relation to either Party then paragraphs 11.2 to 11.7 below shall apply.
11.2 The Parties’ delivery and payment obligations (and any other than obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the time such Event of Default occurs (the date of which shall be the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions:
(a) The Default Market Value of the Equivalent Securities and Equivalent Non- Cash Collateral to be delivered and the amount of any Cash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by each Party shall be established by the Non-Defaulting Party in accordance with paragraph 11.4 and deemed as at the Termination Date.
(b) On the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each Party to the other under this Agreement (on the basis that each Party’s claim against the other in respect of delivery of Equivalent Securities or Equivalent Non-Cash Collateral equal to the Default Market Value thereof) and the sums due from one Party shall be set off against the sums due from the other and only the balance of the account shall be payable (by the Party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any sum not denominated in the Base Currency shall be converted into the Base Currency at the Spot Rate prevailing at such dates and times determined by the Non-Defaulting Party acting reasonably.
(c) If the balance under sub-paragraph (b) above is payable by the Non- Defaulting Party and the Non-Defaulting Party had delivered to the Defaulting Party a Letter of Credit, the Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(d) If the balance under sub-paragraph (b) above is payable by the Defaulting Party and the Defaulting Party had delivered to the Non-Defaulting Party a Letter of Credit, the Non-Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(e) In all other circumstances, where a Letter of Credit has been provided to a Party, such Party shall deliver for cancellation the Letter of Credit so provided.
11.3 For the purposes of this Agreement, the Default Market Value of any Equivalent Collateral in the form of a Letter of Credit shall be zero and of any Equivalent Securities or any other Equivalent Non-Cash Collateral shall be determined in accordance with paragraphs 11.4 to 11.6 below, and for this purpose:
(a) the Appropriate Market means, in relation to securities of any description, the market which is the most appropriate market for securities of that description, as determined by the Non-Defaulting Party;
(b) the Default Valuation Time means, in relation to an Event of Default, the close of business in the Appropriate Market on the fifth dealing day after the day on which that Event of Default with occurs or, where that Event of Default is the occurrence of an Act of Insolvency in respect of which under paragraph 10.1(d) no notice is required from the Non-Defaulting Party in order for such event to any Loan constitute an Event of Default, the close of business on the fifth dealing day after the day on which the Non-Defaulting Party described in paragraph (g) or (h) first became aware of Section 7.01), and at any time thereafter during the continuation occurrence of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Appears in 1 contract
Consequences of an Event of Default. Upon the occurrence and during the continuation of 11.1 If an Event of Default occurs in relation to either Party then paragraphs 11.2 to 11.7 below shall apply.
11.2 The Parties’ delivery and payment obligations (and any other than obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the time such Event of Default occurs (the date of which shall be the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions.
(a) The Default Market Value of the Equivalent Securities and Equivalent Non-Cash Collateral to be delivered and the amount of any Cash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by each Party shall be established by the Non-Defaulting Party in accordance with paragraph 11.4 and deemed as at the Termination Date.
(b) On the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each Party to the other under this Agreement (on the basis that each Party’s claim against the other in respect of delivery of Equivalent Securities or Equivalent Non-Cash Collateral equal to the Default Market Value thereof) and the sums due from one Party shall be set off against the sums due from the other and only the balance of the account shall be payable (by the Party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any sum not denominated in the Base Currency shall be converted into the Base Currency at the spot rate prevailing at such dates and times determined by the Non-Defaulting Party acting reasonably.
(c) If the balance under sub-paragraph (b) above is payable by the Non-Defaulting Party and the Non-Defaulting Party had delivered to the Defaulting Party a Letter of Credit, the Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(d) If the balance under sub-paragraph (b) above is payable by the Defaulting Party and the Defaulting Party had delivered to the Non-Defaulting Party a Letter of Credit, the Non-Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(e) In all other circumstances, where a Letter of Credit has been provided to a Party, such Party shall deliver for cancellation the Letter of Credit so provided.
11.3 For the purposes of this Agreement, the Default Market Value of any Equivalent Collateral in the form of a Letter of Credit shall be zero and of any Equivalent Securities or any other Equivalent Non-Cash Collateral shall be determined in accordance with paragraphs 11.4 to 11.6 below, and for this purpose:
(a) the Appropriate Market means, in relation to securities of any description, the market which is the most appropriate market for securities of that description, as determined by the Non-Defaulting Party;
(b) the Default Valuation Time means, in relation to an Event of Default, the close of business in the Appropriate Market on the fifth dealing day after the day on which that Event of Default with occurs or, where that Event of Default is the occurrence of an Act of Insolvency in respect of which under paragraph 10.1(d) no notice is required from the Non-Defaulting Party in order for such event to any Loan constitute an Event of Default, the close of business on the fifth dealing day after the day on which the Non- Defaulting Party described in paragraph (g) or (h) first became aware of Section 7.01), and at any time thereafter during the continuation occurrence of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Appears in 1 contract
Consequences of an Event of Default. Upon the occurrence and during the continuation of 11.1 If an Event of Default occurs in relation to either Party then paragraphs 11.2 to 11.7 below shall apply.
11.2 The Parties’ delivery and payment obligations (and any other than an obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the time such Event of Default occurs (the date of which shall be the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions.
(a) The Default Market Value of the Equivalent Securities and Equivalent Non- Cash Collateral to be delivered and the amount of any Cash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by each Party shall be established by the Non-Defaulting Party in accordance with paragraph 11.4 and deemed as at the Termination Date.
(b) On the basis of the sums so established, an account shall be taken (as at the Termination Date) of what is due from each Party to the other under this Agreement (on the basis that each Party’s claim against the other in respect of delivery of Equivalent Securities or Equivalent Non-Cash Collateral equal to the Default Market Value thereof) and the sums due from one Party shall be set off against the sums due from the other and only the balance of the account shall be payable (by the Party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any Loan sum not denominated in the Base Currency shall be converted into the Base Currency at the spot rate prevailing at such dates and times determined by the Non-Defaulting Party described in acting reasonably.
(c) If the balance under sub-paragraph (gb) above is payable by the Non-Defaulting Party and the Non-Defaulting Party had delivered to the Defaulting Party a Letter of Credit, the Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(d) If the balance under sub-paragraph (b) above is payable by the Defaulting Party and the Defaulting Party had delivered to the Non-Defaulting Party a Letter of Credit, the Non-Defaulting Party shall draw on the Letter of Credit to the extent of the balance due and shall subsequently deliver for cancellation the Letter of Credit so provided.
(e) In all other circumstances, where a Letter of Credit has been provided to a Party, such Party shall deliver for cancellation the Letter of Credit so provided.
11.3 For the purposes of this Agreement, the Default Market Value of any Equivalent Collateral in the form of a Letter of Credit shall be zero and of any Equivalent Securities or (h) of Section 7.01)any other Equivalent Non-Cash Collateral shall be determined in accordance with paragraphs 11.4 to 11.6 below, and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different timesfor this purpose:
(a) by written notice the Appropriate Market means, in relation to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b) below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice securities of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01description, the Obligor pays to market which is the Trustee most appropriate market for the benefit securities of the Bondholder Partiesthat description, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts as determined by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunderNon-Defaulting Party;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
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Consequences of an Event of Default. Upon the occurrence and during the continuation of If an Event of Default (other than an Event of Default with respect to any Loan Party described under Clause 7.1 occurs in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice relation to the Obligor and TrusteeBorrower, take any or all of then the following actions, at the same or different timesterms under this Clause 7.2 to Clause 7.7 below shall apply:
(a) by written notice The Borrower’s delivery and payment obligations (and any other obligations they have under this Agreement) shall be accelerated so as to require performance thereof at the Trustee and time such Event of Default occurs (the Obligor, declare the outstanding amount date of the Obligations (other than the Bonds which shall be subject to clause the Termination Date) so that performance of such delivery and payment obligations shall be effected only in accordance with the following provisions:-
(bi) below) under The Default Market Value of the Bond Documents equivalent Loan Securities to be immediately due delivered and payable without presentment, demand, protest or further notice the amount of any kindcash Collateral (including sums accrued) to be repaid and any other cash (including interest accrued) to be paid by the Borrower shall be established by the Lender and deemed as at the Termination Date.
(ii) On the basis of the sums so established, all an account shall be taken (as at the Termination Date) of which are hereby expressly waivedwhat is due from the Borrower to the Lender under this Agreement (on the basis that the Lender’s claim against the Borrower in respect of delivery of equivalent Loaned Securities equal to the Default Market Value thereof) and the sums due from the Borrower shall be set off against the sums due from the Lender and only the balance of the account shall be payable (by the party having the claim valued at the lower amount pursuant to the foregoing) and such balance shall be payable on the next following Business Day after such account has been taken and such sums have been set off in accordance with this paragraph. For the purposes of this calculation, any sum not denominated in the Base Currency shall be converted into the Base Currency at the Spot Rate prevailing at such dates and an action therefor shall immediately accrue;times determined by the non-defaulting party acting reasonably.
(b) deliver a written notice to For the Trustee and purposes of this Agreement, the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence Market Value of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “Acceleration Rescission Date”), then upon receipt of such amounts equivalent Loaned Securities shall be determined by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section Lender in accordance with Clause 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreementand Clause 7.3 below, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided, however, that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC). In the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.this purpose:
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