Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”): (a) default in the payment of any of the Obligations consisting of Reimbursement Obligations; (b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days; (c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; (d) default in the performance of any of the agreements or covenants of the Borrower set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed; (e) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed; (f) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days; (g) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or (e) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed; (h) the Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired; (i) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; (j) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days; (k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due; (l) a Material Party makes a general assignment for the benefit of creditors; (m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property; (n) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights; (o) a Change in Control shall occur; (p) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the Borrower, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower set forth in §§Section 6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §Section 8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Borrower set forth in §Section 6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower set forth in §Section 8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(g) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§Section 11.1(a), (b), (c), (d) or (e) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(h) the any Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(i) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(l) a Material Party makes a general assignment for the benefit of creditors;
(m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or process;
(n) the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(no) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof) of any part of the BorrowerPledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(p) the taking of any action by a regulatory authority to obtain control of the Borrower or a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(oq) a Change in Control shall occur;; or
(pr) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunderAggregate Commitments, and upon such notice being given such unused portion of the credit hereunder Aggregate Commitments shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to issue, extend extend, amend or renew Letters of Credit. No termination of the credit hereunder Aggregate Commitments shall relieve the Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §Section 11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the Borrower, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Collateral Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Collateral Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the The occurrence and continuance of any of the following events shall constitute an event of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower Company herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower Company set forth in §§6.5Section 5.05, 6.65.06, 6.85.08, 6.115.11, 7.15.12(b), 7.46.01, 7.5 6.04, 6.05, 6.07 or §8.2 6.08(b) after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Borrower Company set forth in §6.4(eSection 5.04(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower Company set forth in §8.1 Section 6.08(a) and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(g) default in the performance of any of the agreements or covenants of the Borrower Company under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(aSection 7.01(a), (b), (c), (d) or ), (e) or (f) above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(h) the any Control Agreement is terminated by any party thereto and the BorrowerCompany, the Administrative Agent Issuer and another securities intermediary satisfactory to the Administrative Agent Issuer have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative AgentIssuer, such that the Administrative AgentIssuer’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(i) the Administrative AgentIssuer’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 Permitted Statutory Liens or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower Company or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the Borrower a Material Party shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(l) a Material Party makes a general assignment for the benefit of creditors;
(m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 Permitted Statutory Liens and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the BorrowerCompany’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or process;
(n) the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws Debtor Relief Law seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(no) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof) of any part of the BorrowerPledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(p) the taking of any action by a regulatory authority to obtain control of a Material Party or a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(oq) a Change in of Control shall occur;; or
(pr) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a the Company and/or any other Material Party if the aggregate amount of Debt of the Borrower Company and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, or (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); . If any Event of Default shall have occurred and be continuing, the Administrative Agent Issuer may and, upon the request of the Required Lenders, shall, by notice to the BorrowerCompany, terminate the unused portion of the credit hereunderCommitment, and upon such notice being given such unused portion of the credit hereunder Commitment shall terminate immediately and the Lenders and the Fronting Bank Issuer shall be relieved of all further obligations to issue, extend extend, amend or renew Letters of Credit. No termination of the credit hereunder Commitment shall relieve the Borrower or any of its Subsidiaries Company of any of the Obligations and upon such termination of the credit Commitment hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of CreditCompany. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shallIssuer may, with or without prior notice to the BorrowerCompany, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Collateral Account into the name of the Administrative Agent Issuer or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Collateral Account and credited to an account designated by the Administrative AgentIssuer) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower Company to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings L/C Obligations at any time, time and require the Company (or instruct the Securities Intermediary) to convert Collateral into (and thereafter only invest in) Cash and Cash Equivalents; (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower Company all or any portion of the Pledged Collateral, securities or other property of the Borrower Company in the possession of the Administrative AgentIssuer; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower Company take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower Company agrees that the Administrative Agent Issuer has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower Company further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent Issuer shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent Issuer is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement ObligationsObligations or the principal amount of the Loans;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower Borrowers set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(ed) default in the performance of any of the agreements or covenants of the Borrower Mont Re set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(fe) default in the performance of any of the agreements or covenants of the Borrower Borrowers set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(f) the A.M. Best Rating of Mont Re shall be lower than B++;
(g) default in the performance of any of the agreements or covenants of the Borrower Borrowers under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or ), (e) or (f) above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(h) the Control Agreement is terminated by any party thereto and the BorrowerMont Re, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(i) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the a Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the a Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(l) a Material Party makes a general assignment for the benefit of creditors;
(m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the BorrowerMont Re’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(n) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the a Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(o) a Change in Control shall occur;
(p) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the a Borrower and/or any other Material Party Parties which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the BorrowerBorrowers, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of CreditCredit or make Loans. No termination of the credit hereunder shall relieve the Borrower Borrowers or any of its their Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerObligations. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank Lenders or the LC Administrator Administrative Agent to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the BorrowerBorrowers, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower Mont Re to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower Borrowers all or any portion of the Pledged Collateral, securities or other property of the Borrower Borrowers in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative CurrencyCurrencies, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower Mont Re take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. After deducting its expenses, including reasonable out-of-pocket attorney’s fees, incurred in the sale or collection of the Pledged Collateral, the Administrative Agent shall apply the proceeds to the Obligations and shall account to Mont Re for any surplus. The Borrower agrees Borrowers agree that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower Borrowers further agrees agree that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “"Event of Default”"):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) default in the performance of any representation, warranty, certification of the agreements or statement of fact made or deemed made by or on behalf covenants of the Borrower hereinset forth in Section 6.5, in any Loan Document 6.6, 6.8, 6.11, 7.1 or 7.4 or in Section 8.2 of Schedule 8 under this Reimbursement and Pledge Agreement after the date upon which any document delivered in connection herewith applicable grace or therewith cure periods that are expressly herein provided shall be incorrect or misleading in any material respect when made or deemed madehave elapsed;
(d) default in the performance of any of the agreements or covenants of the Borrower set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 Section 6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance Section 8.1 of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 Schedule 8 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(gf) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§Sections 11.1(a), (b), (c), (d) or (e) or above) above and continuance of such default for a period of 30 days after the date upon which (x) any -50- Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(hg) the Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent and the Required Lenders have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s 's first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(ih) the Administrative Agent’s 's security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof hereof, or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off RightsRights or with the express prior written agreement, consent or approval of the Administrative Agent and the Required Lenders; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this the Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ji) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(kj) a Material Party the Borrower admits in writing that it is generally unable to pay debts as they mature or become due;
(lk) a Material Party the Borrower makes a general assignment for the benefit of creditors;
(ml) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and or (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s 's general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party the Borrower under the federal Bankruptcy Code bankruptcy code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate the Borrower a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party the Borrower or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Partythe Borrower, the Pledged Collateral or any substantial part of a Material Party’s the Borrower's property, with or without consent of such Material Partythe Borrower, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party the Borrower (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Partythe Borrower, the Pledged Collateral or for any substantial part of its property;
(nm) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(on) a Change in Control shall occur;; or
(po) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt (as defined on Schedule 8 hereto) of a Material Party the Borrower or any of its Subsidiaries if the aggregate amount of Debt of the Borrower and/or any other Material Party of its Subsidiaries which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 5,000,000 or more, or (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party the Borrower and/or any of its Subsidiaries if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 5,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 5,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerObligations. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §Section 11 shall affect (i) the obligation of the Lenders, the Fronting Bank Lenders or the LC Administrator Administrative Agent to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the Borrower, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral, which the Administrative Agent may purchase free from any right of redemption; (dc) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (ed) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative CurrencyPounds Sterling, with any such conversion costs being considered a collection expense and added to the Obligations; and (fe) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. After deducting its expenses, including reasonable out-of-pocket attorney's fees, incurred in the sale or collection of the Pledged Collateral, the Administrative Agent shall apply the proceeds to the Obligations and shall account to the Borrower for any surplus. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s 's sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(g) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or (e) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(h) the Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(i) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(l) a Material Party makes a general assignment for the benefit of creditors;
(m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or process;
(n) the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(no) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof) of any part of the BorrowerPledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(p) the taking of any action by a regulatory authority to obtain control of the Borrower or a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(oq) a Change in Control shall occur;; or
(pr) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the Borrower, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Collateral Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Collateral Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:: First, to the Administrative Agent for the account of the Fronting Bank and the Lenders, Eligible Collateral having a Collateral Coverage Amount equal to the sum of (x) Dollar Equivalent of the Maximum Drawing Amount; Second, to payment of that portion of the Obligations constituting fees, indemnities, expenses (including expenses incurred in the sale or collection of the Pledged Collateral) and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article 3) payable to the Administrative Agent in its capacity as such; Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than Reimbursement Obligations, interest and Letter of Credit Fees) payable to the Lenders and the Fronting Bank (including fees, charges and disbursements of counsel to the respective Lenders and the Fronting Bank and amounts payable under Article 3), ratably among them in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on Unpaid Reimbursement Obligations and other Obligations, ratably among the Lenders and the Fronting Bank in proportion to the respective amounts described in this clause Fourth payable to them; Fifth, to payment of that portion of the Obligations constituting Unpaid Reimbursement Obligations, ratably among the Lenders and the Fronting Bank in proportion to the respective amounts described in this clause Fifth held by them; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full and all Letters of Credit have expired, to the Borrower or as otherwise required by Law. Amounts held pursuant to clause First above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement ObligationsObligations or the principal amount of the Loans;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower Borrowers set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(ed) default in the performance of any of the agreements or covenants of the Borrower Mont Re set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(fe) default in the performance of any of the agreements or covenants of the Borrower Borrowers set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(gf) default in the performance of any of the agreements or covenants of the Borrower Borrowers under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or (e) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(hg) the Control Agreement is terminated by any party thereto and the BorrowerMont Re, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(ih) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the a Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ji) the a Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(kj) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(lk) a Material Party makes a general assignment for the benefit of creditors;
(ml) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the BorrowerMont Re’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(nm) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the a Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(on) a Change in Control shall occur;
(po) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the a Borrower and/or any other Material Party Parties which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the BorrowerBorrowers, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to issue, extend or renew Letters of CreditCredit or make Loans. No termination of the credit hereunder shall relieve the Borrower Borrowers or any of its their Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, the unpaid principal amount of all Obligations outstanding Loans and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the BorrowerBorrowers, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower Mont Re to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower Borrowers all or any portion of the Pledged Collateral, securities or other property of the Borrower Borrowers in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative CurrencyCurrencies, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower Mont Re take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees Borrowers agree that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower Borrowers further agrees agree that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement ObligationsObligations or the principal amount of the Loans;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the a Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower Borrowers set forth in §§6.5, 6.6, 6.8, 6.116.10, 7.1, 7.4, 7.5 7.5, 7.6,8.1, 8.2 or §8.2 8.3 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(g) default in the performance of any of the agreements or covenants of the Borrower Borrowers under this Reimbursement and Pledge Credit Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or (ed) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(hf) the Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(i) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(kg) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(lh) a Material Party makes a general assignment for the benefit of creditors;
(m) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral Party or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral Party or for any substantial part of its property;
(nj) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the a Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(ok) a Change in Control shall occur;
(pl) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the a Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); . If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the BorrowerBorrowers, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to make Loans and to issue, extend or renew Letters of Credit. No termination of the credit hereunder shall relieve the a Borrower or any of its Subsidiaries of any of the its Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the BorrowerBorrowers. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or or, at the request of the Required Lenders, shall, with or without prior notice shall require that each Borrower Cash Collateralize outstanding Letters of Credit issued for its account in an amount equal to the BorrowerDollar Equivalent of the sum of the Maximum Drawing Amount of all such Letters of Credit; provided, however, that upon the occurrence of an event described in §11.1(i) or (j), the obligation of each Lender and the Fronting Bank to make Credit Extensions shall automatically terminate, and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligations of each Borrower to Cash Collateralize its Obligations with respect to Letters of Credit as aforesaid shall automatically become effective, in each case without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name further act of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable mannerLender. If any Event of Default shall occur and be continuing, the Pledged Cash Collateral of and any amounts received on account of the a Borrower’s Obligations (including proceeds of Pledged Collateral) shall Cash Collateral)shall be applied by the Administrative Agent in the following order:: First, to the Administrative Agent for the account of the Fronting Bank and the Lenders, Cash Collateral equal to the Dollar Equivalent of the Maximum Drawing Amount of the Letters of Credit issued for the account of such Borrower; Second, to payment of that portion of the Obligations of such Borrower constituting fees, indemnities, expenses (including expenses incurred in the sale or collection of such Borrower’s Cash Collateral) and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article 3) payable to the Administrative Agent in its capacity as such; Third, to payment of that portion of such Borrower’s Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the Fronting Bank (including fees, charges and disbursements of counsel to the respective Lenders and the Fronting Bank and amounts payable under Article 3), ratably among them in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of such Borrower’s Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, Unpaid Reimbursement Obligations and other Obligations, ratably among the Lenders and the Fronting Bank in proportion to the respective amounts described in this clause Fourth payable to them; Fifth, to payment of that portion of such Borrower’s Obligations constituting unpaid principal of the Loans and Unpaid Reimbursement Obligations, ratably among the Lenders and the Fronting Bank in proportion to the respective amounts described in this clause Fifth held by them; and Last, the balance, if any, after all of such Borrower’s Obligations have been indefeasibly paid in full and all Letters of Credit have expired, to such Borrower or as otherwise required by Law. Amounts held pursuant to clause First above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Appears in 1 contract
Events of Default and Acceleration. Upon the The occurrence and continuance of any of the following events shall constitute an event of default (each an “"Event of Default”"):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan DocumentsFacility Documents when and as due and payable, including, without limitation, default in the payment of Reimbursement Obligations, Fees and interest, which shall continue unremedied for more than three (3) a period of five Business Days;
(cb) any representation, warranty, certification representation or statement of fact warranty made or deemed made by or on behalf of the any Borrower hereinor any Subsidiary in or in connection with this Agreement, in any Loan Facility Document or any amendment, modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document delivered furnished pursuant to or in connection herewith with this Agreement, any Facility Document or therewith any amendment or modification thereof or waiver thereunder, shall be prove to have been incorrect or misleading in any material respect when made or deemed made;
(c) default in the performance of any of the agreements or covenants of any Borrower set forth in Sections 5.1(a), 5.1(b), 5.1(c), 5.1(f), 5.1(g), 5.2(a)(i), 5.2(a)(ii), 5.2(b) and 5.3 (with respect to any Borrower's existence), 5.7, 5.10 or Section 6;
(d) default in the performance of any of the agreements or covenants of the any Borrower set forth in §§6.5Sections 5.1(d), 6.65.2(a)(iii), 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 5.2(a)(iv) and 5.2(a)(v) and the continuance of such default unremedied for a period of 10 Business Days after the earlier of (x) the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsedResponsible Officer had actual knowledge of such default and (y) the date of notice thereof from the Issuer to any Borrower;
(e) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(f) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(g) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Facility Document (other than those specified in §§11.1(aSection 7.1(a), (b), (c), ) or (d) or (e) or above) and continuance of such default unremedied for a period of 30 days after the earlier of (x) the date upon which (x) any Responsible Officer 431 357363582 had actual knowledge of such default or and (y) the date of notice thereof from the Issuer to any Borrower;
(f) a Borrower shall (i) default in the payment of any Debt (other than the Obligations and obligations amongst the Borrowers and their Affiliates) the aggregate principal amount (including undrawn committed or available amounts) of which is in excess of the Material Debt amount beyond the period of grace if any, provided in the instrument or agreement under which such Debt was created, or (ii) default in the observance or performance of any other agreement or condition relating to any Debt (other than the Obligations and obligations amongst the Borrowers and their Affiliates) the aggregate principal amount (including undrawn committed or available amounts) of which is in excess of the Material Debt amount or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist (other than the Obligations and obligations amongst the Borrowers and their Affiliates), the effect of which default or other event or condition is to cause, with the giving of notice and/or lapse of time, if required, any such Debt to (A) become due, or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Debt to be made, prior to its stated maturity (any applicable grace period having expired) or cure periods that are expressly herein provided (B) be cash collateralized.
(g) an involuntary proceeding under any Debtor Relief Law shall have elapsedbe commenced or an involuntary petition shall be filed seeking (i) liquidation, winding-up, administration, reorganization or other relief in respect of any of any Borrower or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, administration, receivership or similar law now or hereafter in effect or (ii) the appointment of a liquidator, receiver, trustee, custodian, sequestrator, conservator, administrator, administrative receiver or similar official for any Borrower or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) any Borrower shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, administration, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in paragraph (g) of this Section, (iii) apply for or consent to the appointment of a liquidator, receiver, trustee, custodian, sequestrator, conservator, administrator or similar official for any Borrower or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) any Borrower shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 shall be rendered against any Borrower and the same shall remain undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Borrower to enforce any such judgment;
(k) any circumstance in respect of any Foreign Pension Plan shall have occurred that, in the opinion of the Issuer, when taken together with all other such circumstances that have 441 357363582 occurred, could reasonably be expected to result in a Material Adverse Effect and continues unremedied for five Business Days;
(l) a Change of Control shall occur;
(m) any Governmental Authority revokes or fails to renew any material license, permit or franchise of any Borrower, or any Borrower for any reason loses any material license, permit or franchise, or any Borrower suffers the imposition of any restraining order, escrow, suspension or impound of funds in connection with any proceeding (judicial or administrative) with respect to any material license, permit or franchise, which could reasonably be expected to result in a Material Adverse Effect;
(n) any Control Agreement is terminated by any party thereto and the such Borrower, the Administrative Agent Issuer and another securities intermediary financial institution satisfactory to the Administrative Agent Issuer have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative AgentIssuer, such that the Administrative Agent’s Issuer's first priority lien and security interest in the Pledged such Collateral is preserved unimpaired;
(io) the Administrative Agent’s Issuer's security interest in the Pledged any Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Facility Document shall be commenced by or on behalf of the any Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Facility Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(l) a Material Party makes a general assignment for the benefit of creditors;
(mp) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the any Borrower’s 's general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its propertyprocess;
(nq) the assertion of any levy, seizure or attachment on the Pledged any Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control (which shall not have been vacated, discharged or stayed or bonded pending appeal within 60 days from the entry thereof) of any part of the BorrowerCollateral, other than with respect to the Custodial Lien and Set-Off Rights;
(r) the taking of any action by a regulatory authority to obtain control of any Borrower or a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) 60 days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;; or
(o) a Change in Control shall occur;
(ps) there shall occur any in one or a series of transactions: (i) default in the payment when due (subject to any applicable grace period)sale, whether by acceleration assignment or otherwise, transfer of all or substantially all of the assets of any other Debt of a Material Party if the aggregate amount of Debt of the Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, Borrower; (ii) default a merger, amalgamation or consolidation of any Borrower without the prior written consent of the Issuer, except that (A) any Borrower may merge, amalgamate or consolidate with a Subsidiary of such Borrower so long as such Borrower is the surviving entity in any such transaction and (B) any Borrower may merge, amalgamate or consolidate with any Person provided (u) such Borrower is the surviving entity and organized in the performance or observance same jurisdiction as such Borrower's jurisdiction of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable organization prior to its expressed maturitysuch merger, amalgamation or 357363582 consolidation and (v) the security interest granted under such Borrower's Security Agreement continues in full force and effect with the same priority and there are no additional barriers to enforcement of the same; or (iii) a final judgment or judgments which exceed an aggregate the dissolution of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); Borrower. If any Event of Default (other than an Event of Default described in paragraph (g) or (h) above) shall have occurred and be continuing, the Administrative Agent Issuer may and, upon the request of the Required Lenders, shall, by notice to the BorrowerEverest Bermuda, (A) terminate the unused portion of the credit hereunderCommitment, and upon such notice being given such unused portion of the credit hereunder Commitment shall terminate immediately and the Lenders and the Fronting Bank Issuer shall be relieved of all further obligations to issue, extend extend, amend or renew Letters of Credit; and in the case of the occurrence an Event of Default described in paragraph (g) or (h) above, the Commitment shall automatically terminate without further action on the part of the Issuer, and the Issuer shall be relieved of all further obligations to issue, extend, amend or renew Letters of Credit; (B) require that the Borrowers cash collateralize the L/C Obligations; and (C) exercise all rights and remedies available to it under the Facility Documents and/or applicable Law. No termination of the credit hereunder Commitment shall relieve the any Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit Commitment hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the each Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shallIssuer may, with or without prior notice to the applicable Borrower or any other Borrower, and without demand for additional collateral, (ai) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Collateral Account into the name of the Administrative Agent Issuer or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Collateral Account and credited to an account designated by the Administrative AgentIssuer) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (bii) require the applicable Borrower to provide additional Eligible Collateral if the its Collateral Coverage Amount is not equal to or greater than the Total Outstandings its L/C Obligations at any timetime and require the applicable Borrower (or instruct the Custodian) to convert Collateral into (and thereafter only invest in) Cash and to the extent required, by the Issuer, such Cash to be denominated in Dollars; (ciii) sell at public or private sale any or all of the Pledged applicable Borrower Collateral; (div) apply to, or set off against, the Obligations of the such Borrower all or any portion of the Pledged its Collateral, securities or other property of the such Borrower in the possession of the Administrative AgentIssuer; (ev) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (fvi) at its discretion in its own name or in the name of the such Borrower take any action for the collection of the Pledged its Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Each Borrower agrees that the Administrative Agent Issuer has no obligation to sell or otherwise liquidate the Pledged its Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Each Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent Issuer shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s 's sale, the Administrative Agent Issuer is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Everest Re Group LTD)
Events of Default and Acceleration. Upon the occurrence and continuance of any of the following events of default (each an “Event of Default”):
(a) default in the payment of any of the Obligations consisting of Reimbursement Obligations;
(b) default in the payment of any Obligations (other than those specified in clause (a) above) under any of the Loan Documents, including, without limitation, default in the payment of Fees and interest, which shall continue for more than three (3) Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Borrower set forth in §§6.5, 6.6, 6.8, 6.11, 7.1, 7.4, 7.5 or §8.2 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(ed) default in the performance of any of the agreements or covenants of the Borrower set forth in §6.4(e) and continuance of such default for a period of 10 days after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(fe) default in the performance of any of the agreements or covenants of the Borrower set forth in §8.1 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(gf) default in the performance of any of the agreements or covenants of the Borrower under this Reimbursement and Pledge Agreement or any other Loan Document (other than those specified in §§11.1(a), (b), (c), (d) or (e) or above) and continuance of such default for a period of 30 days after the date upon which (x) any Responsible Officer had actual knowledge of such default or (y) any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(hg) the Control Agreement is terminated by any party thereto and the Borrower, the Administrative Agent and another securities intermediary satisfactory to the Administrative Agent have not, as of the date that is three (3) Business Days prior to the effective date of such termination, entered into a control agreement in form and substance reasonably satisfactory to the Administrative Agent, such that the Administrative Agent’s first priority lien and security interest in the Pledged Collateral is preserved unimpaired;
(ih) the Administrative Agent’s security interest in the Pledged Collateral shall cease to be a first priority perfected security interest, otherwise than in accordance with the terms hereof or in connection with (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 or (ii) in connection with the Custodial Lien and Set-Off Rights; or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind this Reimbursement and Pledge Agreement or any other Loan Document shall be commenced by or on behalf of the Borrower or any of its shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, this Reimbursement and Pledge Agreement or any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(ji) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(kj) a Material Party admits in writing that it is generally unable to pay debts as they mature or become due;
(lk) a Material Party makes a general assignment for the benefit of creditors;
(ml) any of the Pledged Collateral is subject to any lien or encumbrance or any claim or demand, other than (i) liens arising by operation of law, so long as the aggregate obligations secured thereby do not exceed $1,000,000 and (ii) the Custodial Lien and Set-Off Rights, that if unpaid might by law or upon bankruptcy, insolvency or otherwise, be given any priority whatsoever over the Borrower’s general creditors with respect to the Pledged Collateral or is transferred for the purposes of the payment of indebtedness not arising hereunder or is taken by attachment, execution or any other form of legal process and/or the commencement of a proceeding by or against a Material Party under the federal Bankruptcy Code or the equivalent under Bermuda law, or any other federal, state or Bermuda laws seeking to adjudicate a Material Party as bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of a Material Party or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar official for a Material Party, the Pledged Collateral or any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any such proceeding instituted against a Material Party (but not instituted by it), either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or any of the following actions sought in such proceeding shall occur: the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, a Material Party, the Pledged Collateral or for any substantial part of its property;
(nm) the assertion of any levy, seizure or attachment on the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights, or the taking of any action by a regulatory authority to obtain control of the Borrower, a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof), or any part of the Pledged Collateral, other than with respect to the Custodial Lien and Set-Off Rights;
(on) a Change in Control shall occur;
(po) there shall occur any (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Debt of a Material Party if the aggregate amount of Debt of the Borrower and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as the insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s); If any Event of Default shall have occurred and be continuing, the Administrative Agent may and, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and the Lenders and the Fronting Bank shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No termination of the credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of the Obligations and upon such termination of the credit hereunder, all Obligations and all interest accrued and unpaid thereon shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower. Notwithstanding anything to the contrary contained herein, no notice given or declaration by the Administrative Agent pursuant to this §11 shall affect (i) the obligation of the Lenders, the Fronting Bank or the LC Administrator to make any payment under any Letter of Credit in accordance with the terms of such Letter of Credit or (ii) the obligations of each Lender in respect of each Letter of Credit. If any Event of Default shall occur and be continuing, the Administrative Agent may or at the request of the Required Lenders, shall, with or without prior notice to the Borrower, and without demand for additional collateral, (a) transfer, or cause the Custodian to transfer any or all of the Pledged Collateral and/or the Securities Account and/or the Deposit Account into the name of the Administrative Agent or its nominee (including, without limitation, having the Pledged Collateral debited from the Securities Account and/or the Deposit Account and credited to an account designated by the Administrative Agent) and vote any Pledged Collateral constituting securities or closely held Capital Stock; (b) require the Borrower to provide additional Eligible Collateral if the Collateral Coverage Amount is not equal to or greater than the Total Outstandings at any time, (c) sell at public or private sale any or all of the Pledged Collateral; (d) apply to, or set off against, the Obligations of the Borrower all or any portion of the Pledged Collateral, securities or other property of the Borrower in the possession of the Administrative Agent; (e) convert any of the Pledged Collateral or any proceeds thereof into the applicable Alternative Currency, with any such conversion costs being considered a collection expense and added to the Obligations; and (f) at its discretion in its own name or in the name of the Borrower take any action for the collection of the Pledged Collateral, including the filing of a proof of claim in insolvency proceedings, and may receive the proceeds thereof and execute releases therefor. The Borrower agrees that the Administrative Agent has no obligation to sell or otherwise liquidate the Pledged Collateral in any particular order or to apply the proceeds thereof to any particular portion of the Obligations. The Borrower further agrees that after the occurrence and during the continuance of an Event of Default, to the extent that any voting rights exist, the Administrative Agent shall have no obligation to vote any Pledged Collateral constituting securities or closely held Capital Stock but shall have the right to do so in its sole discretion. In connection with any secured party’s sale, the Administrative Agent is authorized, if it deems it advisable to do so, in order to comply with any applicable securities laws, to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Pledged Collateral for their own account for investment, and not with a view to the distribution or re-sale thereof. Sales made subject to such restriction shall be deemed to have been made in a commercially reasonable manner. If any Event of Default shall occur and be continuing, the Pledged Collateral and any amounts received on account of the Obligations (including proceeds of Pledged Collateral) shall be applied by the Administrative Agent in the following order:
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
