Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such Event of Default within the parameters agreed by the Shareholders pursuant to clause 17.2, or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder: (i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly; (ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and (iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released: (A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or (B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable). (b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure. (c) If, following the issue of a Default Notice, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedy), then, for so long as the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to: (i) call for and purchase all (but not some) of the Equity Interests held by the Defaulting Shareholder in accordance with the provisions of clause 17.4 at a Discounted Price or (ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to the Defaulting Shareholder in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remedied.
Appears in 1 contract
Consequences of Events of Default. (a) Notwithstanding If one or more of the Events of Default shall have occurred, then, the Lender, by a written notice to the Borrower may declare the principal, all accrued interest charges on the Facility and all other charges and dues, which may be payable by the Borrower under or in terms of this Agreement and/or any other provision agreements, documents subsisting between the Borrower and the Lender, as well as other charges to be due and upon such declaration the same shall become due and payable forthwith and the security in relation to the Facility and any other loans shall become enforceable without any intervention of Courts, notwithstanding anything to the contrary in this Agreement or any other agreement/s or documents. The Lender shall have the right to suspend or terminate the right of the Borrower to make further withdrawals. Upon such termination, the un-drawn amount of the Loan shall stand cancelled.
(b) The Lender may enter upon and take possession of the Project of the Borrower.
(c) The Lender shall have the right to, without accelerating the repayment of whole of the outstanding Loan, sell or cause to sell the hypothecated securities which are sufficient to pay the defaulted amounts under this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such Event of Default within the parameters agreed by the Shareholders pursuant to clause 17.2, or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:.
(id) In case the Defaulting Shareholder Borrower is a company, the Lender shall not be required, notwithstanding any other provision of this Agreement, for have the quorum at any General Assembly;
(ii) any members of right to nominate a director on the board of directors of any JV Group Company nominated the Borrower to protect the interest of the Lender and normal fees and expenses of such director shall be defrayed solely by the Borrower. The Borrower agrees and acknowledges that Defaulting Shareholder, notwithstanding any other provision of this Agreement, such director shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder to hold qualification shares and shall not be entitled liable to payment of any dividends approved retirement until all the Outstanding Amounts under the Facility are repaid by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied Borrower to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cureLender.
(ce) If, following The Lender may transfer the issue of a Default Notice, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days property of the date Borrower in its favour or in favour of such other Person by way of lease, leave and license, sale or otherwise.
(f) The Lender may carry out technical, legal or financial inspection of the Default Notice (provided that an Insolvency Event in respect Project and books of any Shareholder shall be deemed incapable account with the assistance of remedy)its representative, then, for so long as at the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) cost of the Equity Interests held by the Defaulting Shareholder in accordance with the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to the Defaulting Shareholder in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remediedBorrower.
Appears in 1 contract
Samples: Loan Agreement
Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such an Event of Default within the parameters agreed by the Shareholders pursuant to clause 17.2occurs, or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming thatthen, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) at any Board of Managers’ meeting where the voting of the Board of Managers results in a tied vote, a Board Manager nominated by the Non-Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assemblyentitled to cast an additional vote;
(ii) any members notwithstanding the terms of the board of directors of any JV Group Company nominated by that Defaulting ShareholderShareholder Loan Agreements and the Shareholders’ Loan Repayment and Dividend Policy, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of receive any Shareholder Loan repayments or dividends approved by in accordance with the General AssemblyShareholders’ Loan Repayment and Dividend Policy. The Defaulting Shareholder’s share of any Shareholder Loan repayments or dividends declared made after the issue occurrence of a Default Noticean Event of Default, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right option to an option, purchase all (but not less than all) of the Shareholder Instruments held by the Defaulting Shareholder as set forth in clause 17.3(c) or clause 17.4 (as applicable15.3(c).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares Shareholder Instruments may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b15.3(c) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure16.8.
(c) If, following the issue of a Default Notice, there is a continuing the Event of Default which is not remediable orremediable, or if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder or Xxxxxx Drilling International Limited or an Event of Default described in clause 15.1(j) shall be deemed incapable of remedy), then, for so long as the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by if the Defaulting Shareholder in accordance with is Nabors, Saudi Aramco shall have a Call Option which may be exercised by issuing a Call Notice and the provisions of clause 17.4 at 16.8 shall apply provided that Saudi Aramco may only issue a Discounted Price orCall Notice if: (A) the Call Notice is issued within one hundred and fifty (150) days of the Default Notice being given or received (as applicable) by Saudi Aramco; and (B) Saudi Aramco is not itself a Defaulting Shareholder;
(ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to if the Defaulting Shareholder in accordance with is Saudi Aramco, Nabors shall have a Put Option which may be exercised by issuing a Put Notice and the provisions of clause 17.5 at 16.9 shall apply provided that Nabors may only issue a Premium Put PriceNotice if: (A) the Put Notice is issued within one hundred and fifty (150) days of the Default Notice being given or received (as applicable); (B) Nabors is not itself a Defaulting Shareholder; and (C) only to the extent such Event of Default occurs during the Transition Period, Nabors has provided commercially reasonable assistance to the Company to put in place alternative arrangements for the services it has been providing to the Company under the Services Agreement, provided that if a Call Notice to exercise an option or Put Notice (as applicable) is not issued in accordance with this clause 17.3(c15.3(c) and clause 17.4 or clause 17.5 clauses 16.8 and 16.9 (as applicable) ), within one hundred and eighty fifty (180150) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remedied.
Appears in 1 contract
Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such If an Event of Default within the parameters agreed by occurs, then any of the Shareholders pursuant to clause 17.2who are not in default (collectively, or (y) the Senior Representatives fail to agree on “Non-Defaulting Shareholders” and each a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly;
(ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the “Non-Defaulting Shareholder, if ”) may deliver to the other Shareholders a Notice of the occurrence of such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting ShareholderDefault, no Transfer setting forth the identity of the Defaulting Shareholder’s Shares may take place other than Shareholder who is in accordance with clauses 17.3(c), and 17.5 (as applicable). If default or to which the Event of Default is remedied to relates (the satisfaction of the Non-“Defaulting Shareholders, then the transfer restrictions of this clause 17.3(bShareholder”) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date circumstances of such cure.
(c) If, following Event of Default. Upon the issue expiration of a Default Noticeperiod of [***] thereafter, there is a continuing if the Event of Default which is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall apply.
(b) If a Non-Defaulting Founding Shareholder has not been remedied within ninety (90) days of the date of the delivered a Continuing Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedyaccordance with Section 18.2(a), then, then for so long as the applicable specified Event of Default is continuing:
(i) if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex D (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex D (Acquisition of Ownership Interests) for any reason, then the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, then:
(A) during a [***] period following the delivery of the Continuing Default Notice, the Founding Shareholders shall, in good faith, discuss the continuation of the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the Dow Founding Shareholder ceasing to be a Shareholder in the Company. Following such [***] period after the delivery of the Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply.
(B) The Put Notice delivered by the Dow Founding Shareholder shall indicate:
(1) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein;
(2) the price for the [***] applicable in accordance with Section 5.1 of the [***];
(3) which [***] the Company has entered into with the Dow Founding Shareholder (and / or its Affiliates) relating to [***] [***] that the Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests).
(c) From the date of the completion of the transactions contemplated by Section 18.2(b)(i), Section 18.2(b)(ii), or Section 18.2(b)(iii), as the case may be:
(i) the Shareholders who are transferees of the Transferor shall assume in full, on a pro rata basis as between themselves, and at no cost to the Transferor or its Affiliates, all liabilities of the Transferor and its Affiliates in or related to such Transferor’s capacity as Shareholder, including all guarantees given or delivered by the Transferor or its Affiliates in such capacity, and:
(A) all Non-Transferring Shareholders shall release (and cause their Affiliates and the Company to release) the Transferor and its Affiliates from all liabilities in or related to the Transferor’s capacity as a Shareholder; and
(B) any guarantees delivered by the Transferor or its Affiliates shall immediately be deemed to have been terminated, provided that nothing in this Section 18.2(c)(i) shall affect any liabilities of the Transferor or its Affiliates in connection with any Principal Agreement to which it, or its Affiliate, is party, or any guarantees in respect thereof; and
(ii) the Transferor shall cease to be a Shareholder and shall cease to be a party to this Shareholders’ Agreement and, without prejudice to any rights or obligations that shall have accrued or become due prior to such date and the rights or remedies that any party may have in respect of any breach of this Shareholders’ Agreement prior to such date (other than any breach constituting the Event of Default leading to the Transfer), the Transferor shall cease to have any rights or obligations under this Shareholders’ Agreement except for those rights and obligations contained in, and the provisions of, Sections 1 (Definitions and Usage), 4.2 (Term and Termination of Shareholders’ Agreement; Survival), 14.1(g)-(h) (Books and Records) (in respect of the years during which the Transferor was a Shareholder), 15.6 (Non-Breach of Law), 17.5(a) (Principal Agreements), 19.3(e) (Transfers to Third Parties), 20.4 (Equity Rebalancing True-Up), 21 (Confidential Information), Section 22 (Indemnification and Liability), 24 (Dispute Resolution Procedures), 25 (Assignment), 26.2 (Binding Effect), 26.3 (Notices), 26.4 (Entire Agreement), 26.6 (Waivers) through 26.11 (Further Actions) (inclusive), 26.13 (Reliance), 26.14 (Prohibited Payments), 26.15 (Immunity), and Annex A (Dispute and Expert Resolution Procedures), which shall continue in force after the Transferor ceases to be a Shareholder.
(d) The completion of the transactions contemplated in Section 18.2(b) shall be the Non-Defaulting Shareholders’ (and their Affiliates’) and the Company’s sole and exclusive remedy in respect of all Losses arising (whether under this Shareholders’ Agreement, under Law, or otherwise) as a result of the events or circumstances connected with the Event of Default that is the subject of the relevant Continuing Default Notice (and the Non-Defaulting Shareholders shall have an option which they must unanimously decide not allow the Company to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by make any claim against the Defaulting Shareholder in accordance with relation to such events or circumstances), provided that nothing in this Section 18.2(d) shall prevent the provisions Company from exercising any right it may have under any of clause 17.4 at a Discounted Price orthe Principal Agreements.
(iie) put The Shareholders agree that the Events of Default set out in Section 18.1 (Events of Default) are the sole and sell all (but not some) of exclusive grounds upon which a Shareholder may terminate this Shareholders’ Agreement and the Equity Interests held by such Non- Defaulting Shareholders agree to exclude, to the Defaulting extent permissible, any right of termination arising under Applicable Law contrary to the terms hereof. Subject to the limitations set forth in Sections 18.2(c) and 18.2(d) and the immediately preceding sentence, if there is a breach of this Shareholders’ Agreement, then any Shareholder not in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice breach shall be free to exercise an option is not issued in accordance with all rights and remedies that may be available to such Shareholder under this clause 17.3(c) and clause 17.4 Shareholders’ Agreement or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remediedApplicable Law.
Appears in 1 contract
Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such If an Event of Default within the parameters agreed by occurs, then any of the Shareholders pursuant to clause 17.2who are not in default (collectively, or (y) the Senior Representatives fail to agree on “Non-Defaulting Shareholders” and each a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly;
(ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the “Non-Defaulting Shareholder, if ”) may deliver to the other Shareholders a Notice of the occurrence of such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting ShareholderDefault, no Transfer setting forth the identity of the Defaulting Shareholder’s Shares may take place other than Shareholder who is in accordance with clauses 17.3(c), and 17.5 (as applicable). If default or to which the Event of Default is remedied to relates (the satisfaction of the Non-“Defaulting Shareholders, then the transfer restrictions of this clause 17.3(bShareholder”) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date circumstances of such cure.
(c) If, following Event of Default. Upon the issue expiration of a Default Noticeperiod of [***] thereafter, there is a continuing if the Event of Default which is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall apply.
(b) If a Non-Defaulting Founding Shareholder has not been remedied within ninety (90) days of the date of the delivered a Continuing Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedyaccordance with Section 18.2(a), then, then for so long as the applicable specified Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex C (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex C (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex C (Acquisition of Ownership Interests) for and any reason, then the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (but and not somea portion) of the Equity Interests held Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, then:
(A) during a [***] period following the delivery of the Continuing Default Notice, the Founding Shareholders shall, in good faith, discuss the continuation of the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the Dow Founding Shareholder ceasing to be a Shareholder in the Company. Following such [***]period after the delivery of the Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex C (Acquisition of Ownership Interests) shall apply.
(B) The Put Notice delivered by the Defaulting Dow Founding Shareholder shall indicate:
(1) whether the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate the [***] in accordance with the provisions of clause 17.4 at a Discounted Price orterms therein;
(ii2) put and sell all (but not some) the price for the [***] applicable in accordance with Section 5.1 of the Equity Interests held by such Non- Defaulting Shareholders [***];
(3) which [***] the Company has entered into with the Dow Founding Shareholder (and / or its Affiliates) relating to [***] that the Defaulting Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the provisions terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of clause 17.5 the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at a Premium Put the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex C (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Default Notice being given or received PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as applicablea proportion of all such Non-Defaulting Shareholders’ Ownership Interests), the Event of Default shall be deemed to have been remedied.
Appears in 1 contract
Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such Event of Default within the parameters agreed by the Shareholders pursuant to clause 17.2, or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) On and at any time after the Defaulting Shareholder shall occurrence of an Event of Default, which is continuing, the Debenture Trustee may, in their discretion, and shall, upon request in writing of the holders of the Bonds of an amount representing not be required, notwithstanding any other provision less than half in value of this Agreement, the nominal amount of the Bonds for the quorum time being outstanding or by a Special Resolution duly passed at any General Assembly;the meeting of the Bondholder(s) held in accordance with the provisions set out in Schedule II (Provisions for the Meeting of the Bondholder(s)) hereto by a notice in writing to the Issuer initiate the following course of action, which notice the Issuer acknowledges herein as reasonable:
(ii) declare that the Bonds shall automatically and without any members further action, become due for redemption and all Interest amounts accrued and principal Amount payments be immediately due and payable, whereupon they shall become immediately due and payable;
(iii) take all action or file any proceedings as permitted under Applicable Law for recovery of all principal Amount, Interest amounts or other amount due under the Transaction Documents;
(iv) stipulate such other conditions or amend any terms of the Transaction Documents as the Debenture Trustee considers necessary;
(v) restrict payment of commission in any year to any person, by whatever name called exercising substantial powers of management, unless all the dues of the Debenture Trustee or Bondholders in that year have been paid to the satisfaction of the Debenture Trustee;
(vi) to appoint a nominee director on the board of directors of any JV Group Company nominated the Issuer on behalf of the Bondholders (“Nominee Director”) in the event of:
(a) 2 (Two) consecutive defaults in payment of interest to the Bondholders; or
(b) default in redemption of the Bonds. The right to appoint the Nominee Director shall be exercised by that Defaulting Shareholderthe Debenture Trustee as per the statutory guidelines as may be applicable for the purpose, notwithstanding any other provision of this Agreement, in consultation with the Bondholder(s). The Nominee Director so appointed shall not be liable to retire by rotation nor be required to hold any qualification shares. The Issuer shall take steps to amend its articles of association for the quorum at purpose, if necessary.
(vii) appoint any meeting of any such board chartered accountants or cost accountants as auditors to examine the approval of any matter financial or cost accounting system and procedures adopted by any such board (including any Board Reserved Matters)the Issuer for its working or as concurrent or internal auditors; and
(iiiviii) the Defaulting Shareholder shall not The Debenture Trustee may exercise such other rights as may be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) available to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety Debenture Trustee under Applicable Law including procedure lead down in SEBI Defaults (90Procedure) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) Circular as amended from time to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable)time.
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure.
(c) If, following the issue of a Default Notice, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedy), then, for so long as the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by the Defaulting Shareholder in accordance with the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to the Defaulting Shareholder in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remedied.
Appears in 1 contract
Samples: Debenture Trust Deed
Consequences of Events of Default. (a) Notwithstanding any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such If an Event of Default within the parameters agreed by occurs, then any of the Shareholders pursuant to clause 17.2who are not in default (collectively, or (y) the Senior Representatives fail to agree on “Non-Defaulting Shareholders” and each a remedy for such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly;
(ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the “Non-Defaulting Shareholder, if ”) may deliver to the other Shareholders a Notice of the occurrence of such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting ShareholderDefault, no Transfer setting forth the identity of the Defaulting Shareholder’s Shares may take place other than Shareholder who is in accordance with clauses 17.3(c), and 17.5 (as applicable). If default or to which the Event of Default is remedied to relates (the satisfaction of the Non-“Defaulting Shareholders, then the transfer restrictions of this clause 17.3(bShareholder”) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date circumstances of such cure.
(c) If, following Event of Default. Upon the issue expiration of a Default Noticeperiod of [***] thereafter, there is a continuing if the Event of Default which is not remediable or, if remediable, is continuing, then any Non-Defaulting Founding Shareholder may deliver to the Defaulting Shareholder a Notice stating that such Event of Default is continuing (a “Continuing Default Notice”), in which case Section 18.2(b) shall apply.
(b) If a Non-Defaulting Founding Shareholder has not been remedied within ninety (90) days of the date of the delivered a Continuing Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedyaccordance with Section 18.2(a), then, then for so long as the applicable specified Event of Default is continuing:
(i) if the Dow Founding Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a Dow Call Notice to the Dow Founding Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that;
(A) if more than one Non-Defaulting Shareholder delivers a Call Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the Dow Founding Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests);
(B) the PublicCo Shareholder shall only be entitled to participate in such purchase if, concurrent with its delivery of a Call Exercise Notice in accordance with Annex D (Acquisition of Ownership Interests), it has provided to the Dow Founding Shareholder an unconditional, on-demand [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 84 - letter of credit in a form, and from an international financial institution, in each case, reasonably acceptable to the Dow Founding Shareholder in an amount equal to the PublicCo Shareholder’s pro rata portion of the Dow Default Price; and
(C) if the PublicCo Shareholder does not deliver a Dow Call Notice or a Call Exercise Notice or, after issuing a Call Exercise Notice, does not pay its pro rata portion of the Dow Default Price in accordance with Annex D (Acquisition of Ownership Interests) for any reason, then the Saudi Aramco Founding Shareholder shall have the right (but not the obligation) to purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Dow Default Price;
(ii) if the Saudi Aramco Founding Shareholder is the Defaulting Shareholder, then:
(A) during a [***] period following the delivery of the Continuing Default Notice, the Founding Shareholders shall, in good faith, discuss the continuation of the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates) on an arms’ length basis upon the Dow Founding Shareholder ceasing to be a Shareholder in the Company. Following such [***] period after the delivery of the Continuing Default Notice, the Dow Founding Shareholder may deliver a Put Notice to the Saudi Aramco Founding Shareholder and the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply.
(B) The Put Notice delivered by the Dow Founding Shareholder shall indicate:
(1) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein;
(2) the price for the [***] applicable in accordance with Section 5.1 of the [***];
(3) which [***] the Company has entered into with the Dow Founding Shareholder (and / or its Affiliates) relating to [***] [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 85 - [***] that the Dow Founding Shareholder (and / or its Affiliates) shall terminate in accordance with the terms therein;
(4) which [***] the Dow Founding Shareholder (and / or its Qualifying Affiliates) shall terminate in accordance with the terms therein; and
(5) other modifications (if any) to the various Project Agreements between the Company and the Dow Founding Shareholder (and / or its Affiliates), as agreed between the Founding Shareholders, pursuant to the good faith discussions in Section 18.2(b)(ii)(A), in each case, with effect upon the completion of the transactions contemplated by this Section 18.2(b)(ii).
(C) If Dow delivers a Put Exercise Notice, then:
(1) if the PublicCo Shareholder intends to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, then the PublicCo Shareholder shall purchase a pro rata portion of that Ownership Interest (calculated by reference to the PublicCo Shareholder’s Ownership Interest as a proportion of the PublicCo Shareholder’s Ownership Interest and the Saudi Aramco Founding Shareholder’s Ownership Interest); and
(2) if the PublicCo Shareholder does not intend to participate in the purchase of the Dow Founding Shareholder’s Ownership Interest, or intends to participate but does not pay its pro rata portion of the Saudi Aramco Default Price for any reason, then the Saudi Aramco Founding Shareholder shall purchase all (and not a portion) of the Dow Founding Shareholder’s Ownership Interest at the Saudi Aramco Default Price; and
(iii) if the PublicCo Shareholder is the Defaulting Shareholder, then at any time following the delivery of the Continuing Default Notice any Non-Defaulting Shareholder may deliver a PublicCo Call Notice to the PublicCo Shareholder, in which case Annex D (Acquisition of Ownership Interests) shall apply, provided that if more than one Non-Defaulting Shareholder delivers a Call [***] Confidential treatment has been requested. The redacted material has been separately filed with the Commission. - 86 - Exercise Notice, then each such Non-Defaulting Shareholder shall purchase a pro rata portion of the PublicCo Shareholder’s Ownership Interest (calculated by reference to each such Non-Defaulting Shareholder’s Ownership Interest as a proportion of all such Non-Defaulting Shareholders’ Ownership Interests).
(c) From the date of the completion of the transactions contemplated by Section 18.2(b)(i), Section 18.2(b)(ii), or Section 18.2(b)(iii), as the case may be:
(i) the Shareholders who are transferees of the Transferor shall assume in full, on a pro rata basis as between themselves, and at no cost to the Transferor or its Affiliates, all liabilities of the Transferor and its Affiliates in or related to such Transferor’s capacity as Shareholder, including all guarantees given or delivered by the Transferor or its Affiliates in such capacity, and:
(A) all Non-Transferring Shareholders shall release (and cause their Affiliates and the Company to release) the Transferor and its Affiliates from all liabilities in or related to the Transferor’s capacity as a Shareholder; and
(B) any guarantees delivered by the Transferor or its Affiliates shall immediately be deemed to have been terminated, provided that nothing in this Section 18.2(c)(i) shall affect any liabilities of the Transferor or its Affiliates in connection with any Principal Agreement to which it, or its Affiliate, is party, or any guarantees in respect thereof; and
(ii) the Transferor shall cease to be a Shareholder and shall cease to be a party to this Shareholders’ Agreement and, without prejudice to any rights or obligations that shall have accrued or become due prior to such date and the rights or remedies that any party may have in respect of any breach of this Shareholders’ Agreement prior to such date (other than any breach constituting the Event of Default leading to the Transfer), the Transferor shall cease to have any rights or obligations under this Shareholders’ Agreement except for those rights and obligations contained in, and the provisions of, Sections 1 (Definitions and Usage), 4.2 (Term and Termination of Shareholders’ Agreement; Survival), 14.1(g)-(h) (Books and Records) (in respect of the years during which the Transferor was a Shareholder), 15.6 (Non-Breach of Law), 17.5(a) (Principal Agreements), 19.3(e) (Transfers to Third Parties), 20.4 (Equity Rebalancing True-Up), 21 (Confidential Information), Section 22 (Indemnification and Liability), 24 (Dispute Resolution Procedures), 25 (Assignment), 26.2 (Binding Effect), 26.3 (Notices), 26.4 (Entire Agreement), 26.6 (Waivers) through 26.11 (Further Actions) (inclusive), 26.13 (Reliance), 26.14 (Prohibited Payments), 26.15 (Immunity), and Annex A (Dispute and Expert Resolution Procedures), which shall continue in force after the Transferor ceases to be a Shareholder.
(d) The completion of the transactions contemplated in Section 18.2(b) shall be the Non-Defaulting Shareholders’ (and their Affiliates’) and the Company’s sole and exclusive remedy in respect of all Losses arising (whether under this Shareholders’ Agreement, under Law, or otherwise) as a result of the events or circumstances connected with the Event of Default that is the subject of the relevant Continuing Default Notice (and the Non-Defaulting Shareholders shall have an option which they must unanimously decide not allow the Company to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by make any claim against the Defaulting Shareholder in accordance with relation to such events or circumstances), provided that nothing in this Section 18.2(d) shall prevent the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) Company from exercising any right it may have under any of the Equity Interests held by such Non- Defaulting Principal Agreements. (e) The Shareholders agree that the Events of Default set out in Section 18.1 (Events of Default) are the sole and exclusive grounds upon which a Shareholder may terminate this Shareholders’ Agreement and the Shareholders agree to exclude, to the Defaulting extent permissible, any right of termination arising under Applicable Law contrary to the terms hereof. Subject to the limitations set forth in Sections 18.2(c) and 18.2(d) and the immediately preceding sentence, if there is a breach of this Shareholders’ Agreement, then any Shareholder not in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice breach shall be free to exercise an option is not issued in accordance with all rights and remedies that may be available to such Shareholder under this clause 17.3(c) and clause 17.4 Shareholders’ Agreement or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remediedApplicable Law.
Appears in 1 contract
Samples: Shareholders' Agreement
Consequences of Events of Default. (ai) Notwithstanding Upon the occurrence of an Event of Default, the interest rate on the Note shall increase immediately by an increment of two (2) percentage points to the extent permitted by law. Any such increase of the interest rate resulting from the operation of this subparagraph shall terminate as of the close of business on the first subsequent date on which no Events of Default exist (subject to subsequent increases pursuant to this subparagraph).
(ii) If an Event of Default has occurred, the Principal Amount, together with all accrued but unpaid interest of the Note on such date shall become immediately due and payable without any action on the part of the Noteholder, and the Borrower shall immediately pay to the Noteholder all amounts due and payable with respect to the Note.
(iii) The Noteholder shall also have any other provision rights which such holder may have been afforded under Security Agreement, any other contract or agreement and any other rights which such holder may have pursuant to applicable law.
(iv) The Borrower hereby waives diligence, presentment, protest and demand and notice of protest and demand, dishonor and nonpayment of this Agreement, if a Default Notice is properly issuedNote, and expressly agrees that this Note, or any payment hereunder, may be extended from time to time and that the Noteholder may accept security for this Note or release security for this Note, all without in any way affecting the liability of the Borrower hereunder.
(xv) The Noteholder's right and remedies shall be cumulative. No exercise by the Defaulting Shareholder fails to Noteholder of one right or remedy shall be deemed an election which precludes other remedies, and no waiver by the Noteholder of any Event of Default on the Borrower's part shall be deemed made unless done in a writing signed by the Noteholder. No delay by the Noteholder shall constitute a waiver, election, or acquiescence by it.
(vi) The Borrower shall pay, or reimburse the Noteholder for all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorneys fees and expenses) paid or incurred by the Noteholder before and after judgment in enforcing, protecting or preserving its rights under this Note and as a Noteholder under the Security Agreement.
(vii) If the Borrower becomes aware of the occurrence of an Event of Default, it shall give notice of such Event of Default within to the parameters agreed by Noteholder and IDI. If the Shareholders pursuant Noteholder believes that an Event of Default has occurred and has not received notice to clause 17.2that effect from the Borrower, or (y) the Senior Representatives fail to agree on a remedy for it shall give notice of such Event of Default within the time periods specified in clause 17.2(e), then the Company shall issue such Defaulting Shareholder with "a "Disenfranchisement Notice", confirming that, for so long as such Event of Default is continuing in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision of this Agreement, for the quorum at any General Assembly;
(ii) any members of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, Borrower and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable)IDI.
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure.
(c) If, following the issue of a Default Notice, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder shall be deemed incapable of remedy), then, for so long as the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) of the Equity Interests held by the Defaulting Shareholder in accordance with the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) of the Equity Interests held by such Non- Defaulting Shareholders to the Defaulting Shareholder in accordance with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remedied.
Appears in 1 contract
Consequences of Events of Default. (a) Notwithstanding If any other provision of this Agreement, if a Default Notice is properly issued, and (x) the Defaulting Shareholder fails to remedy such Event of Default within shall occur for any reason, whether voluntary or involuntary, and be continuing, Holder may, upon notice or demand, declare the parameters agreed outstanding Obligations under this Note to be due and payable, whereupon the outstanding Obligations under this Note shall be and become immediately due and payable, and the Company shall immediately pay to Holder all such Obligations. Upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all Obligations under this Note shall automatically be due immediately without notice of any kind. The Company agrees to pay Holder all out-of-pocket costs and expenses incurred by Holder (including attorney's fees) in connection with the Shareholders enforcement or protection of its rights in relation to this Note, including any suit, action, claim or other activity of Holder to collect or otherwise enforce the Obligations under this Note or any portion thereof, or in connection with the transactions contemplated hereby. Holder shall also have any other rights which Holder may have been afforded under any contract or agreement at any time and any other rights which Holder may have pursuant to clause 17.2applicable law. Lost, Stolen, Destroyed or (y) the Senior Representatives fail to agree on a remedy for such Event of Default within the time periods specified in clause 17.2(e)Mutilated Note . In case this Note shall be mutilated, then lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of such Defaulting Shareholder with "a "Disenfranchisement Notice"mutilated Note, confirming that, for so long as such Event of Default is continuing or in respect of a Defaulting Shareholder:
(i) the Defaulting Shareholder shall not be required, notwithstanding any other provision lieu of this AgreementNote being lost, for the quorum at any General Assembly;
(ii) any members stolen or destroyed, upon receipt of the board of directors of any JV Group Company nominated by that Defaulting Shareholder, notwithstanding any other provision of this Agreement, shall not be required for the quorum at any meeting of any such board or the approval of any matter by any such board (including any Board Reserved Matters); and
(iii) the Defaulting Shareholder shall not be entitled evidence satisfactory to payment of any dividends approved by the General Assembly. The Defaulting Shareholder’s share of any dividends declared after the issue of a Default Notice, and for so long as such Event of Default is continuing, shall be retained by the Company and released:
(A) to the Defaulting Shareholder, if the applicable Event of Default has been remedied within ninety (90) days of the date of the relevant Default Notice, and such Shareholder has ceased being a Defaulting Shareholder; or
(B) to the Non-Defaulting Shareholder, if such Non-Defaulting Shareholder has exercised its right to an option, as set forth in clause 17.3(c) or clause 17.4 (as applicable).
(b) Notwithstanding any other provision of this Agreement, following the issue of a Default Notice and for so long as an Event of Default is continuing in respect of a Defaulting Shareholder, no Transfer of the Defaulting Shareholder’s Shares may take place other than in accordance with clauses 17.3(c), and 17.5 (as applicable). If the Event of Default is remedied to the satisfaction of the Non-Defaulting Shareholders, then the transfer restrictions of this clause 17.3(b) and the other restrictions set out in the Disenfranchisement Notice shall be revoked with effect from the date of such cure.
loss, theft or destruction. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE COMPANY (cBY ITS EXECUTION HEREOF) IfAND HOLDER (BY ITS ACCEPTANCE OF THIS NOTE) WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, following the issue of a Default NoticeDEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, there is a continuing Event of Default which is not remediable or, if remediable, has not been remedied within ninety (90) days of the date of the Default Notice (provided that an Insolvency Event in respect of any Shareholder IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. Governing Law . This Note shall be deemed incapable of remedy), then, for so long as to be a contract made under the applicable Event of Default is continuing, the Non-Defaulting Shareholders shall have an option which they must unanimously decide to exercise to:
(i) call for and purchase all (but not some) laws of the Equity Interests held by the Defaulting Shareholder State of New York and for all purposes shall be governed by, construed under, and enforced in accordance with the provisions of clause 17.4 at a Discounted Price or
(ii) put and sell all (but not some) laws of the Equity Interests held by such Non- Defaulting Shareholders to State of New York. Amendment and Waiver . Any term of this Note may be amended and the Defaulting Shareholder observance of any term of this Note may be waived (either generally or in accordance a particular instance and either retroactively or prospectively), only with the provisions of clause 17.5 at a Premium Put Price; provided that if a Notice to exercise an option is not issued in accordance with this clause 17.3(c) and clause 17.4 or clause 17.5 (as applicable) within one hundred and eighty (180) days written consent of the Default Notice being given or received (as applicable), the Event of Default shall be deemed to have been remediedCompany and Holder.
Appears in 1 contract
