Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default": (a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance; (b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance; (c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information; (d) you die or become of unsound mind; (e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the system, or Scalping); (f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement; (g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcy, or you are generally unable to pay your debts as they become due (or you admit so in writing); (h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt; (i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform; (j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or (k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2. 23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps: (a) close out all or any of your Open Positions at current quotes; (b) debit (or credit) your Account for amounts which are due to us (or you); (c) close your Account, including any or all landing or trading accounts; or (d) refuse to open new Positions, landing accounts or trading accounts for you. 23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us. 23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable. 23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement. 23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 4 contracts
Samples: Retail Clients Terms of Business, Retail Clients Terms of Business, Retail Clients Terms of Business
Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abusemarket abuse, gaming the system, or Scalpingscalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcybankruptcy within the jurisdiction of the United Kingdom, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in any jurisdiction outside the United Kingdom in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;; or
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accountsof your Accounts held with us; or
(d) refuse to open new Positions, landing accounts Positions or trading accounts Accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balancesloss, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 2 contracts
Samples: Terms of Business, Terms of Business
Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abusemarket abuse, gaming the system, or Scalpingscalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcybankruptcy , or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;; or
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accountsof your Accounts held with us; or
(d) refuse to open new Positions, landing accounts Positions or trading accounts Accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 2 contracts
Samples: Retail Clients Terms of Business, Retail Clients Terms of Business
Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abusemarket abuse, gaming the system, or Scalpingscalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcybankruptcy , or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;; or
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable ordesirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accountsof your Accounts held with us; or
(d) refuse to open new Positions, landing accounts Positions or trading accounts Accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 2 contracts
Samples: Retail Clients Terms of Business, Retail Clients Terms of Business
Events of Default and Their Effect.
23.1 Each of the following will constitute an "Event of Default":Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abusemarket abuse, gaming the system, or Scalpingscalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcybankruptcy within any jurisdiction, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in any jurisdiction in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;; or
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accountsof your Accounts held with us; or
(d) refuse to open new Positions, landing accounts Positions or trading accounts Accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balancesloss, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 2 contracts
Samples: Terms of Business, Terms of Business
Events of Default and Their Effect. 23.1 Each If any of the following will constitute events (each an "“Event of Default"”) shall occur and be continuing:
(a) you Any (i) Applicant shall, other than as a result of administrative or technical error so long as such error is corrected within three (3) Business Days of notification to such Applicant of such error, fail to satisfy pay any material provision reimbursement obligation in respect of this Agreement any LOC Disbursement made by the Bank pursuant to an LOC, (ii) Applicant shall fail to deposit Cash Collateral when and as the same shall become due and payable, or (iii) Credit Party shall fail to pay any other amount payable by such failure continues for more than 3 Credit Party under any Loan Document, in each case within five (5) Business Days after we have given you the relevant notice of non- performancesame becomes due and payable with respect to a payment required to be made pursuant to Section 2.03 or ten (10) Business Days after the same becomes due and payable with respect to any other payment required to be made hereunder;
(b) you fail Any representation or warranty made by any Credit Party (or any of its officers or other representatives) under or in connection with any Loan Document shall prove to perform a have been incorrect in any material obligation under this Agreement respect when made or deemed to have been made and such failure inaccuracy is reasonably likely to expose us not remedied within thirty (30) days after receipt of notice to the risk of a loss applicable Credit Party and the Parent Guarantor from the Bank specifying such that it is not possible for us, acting reasonably, to give you notice of non-performanceinaccuracy;
(c) you Any Credit Party shall fail to provide us with perform or observe any information term, covenant, or agreement contained herein on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after written notice required pursuant thereof shall have been given to this Agreement or provide falsethe Company by the Bank, incomplete or misleading informationexcept where such default cannot be reasonably cured within 30 days but can be cured within sixty (60) days, the Credit Party has (i) during such 30-day period commenced and is diligently proceeding to cure the same and (ii) such default is cured within 60 days after the earlier of becoming aware of such failure and receipt of notice to the Company and the Parent Guarantor from the Bank specifying such failure;
(d) you die The Parent Guarantor shall fail to pay any indebtedness for borrowed money pursuant to a loan agreement or become noncontingent payment obligation pursuant to a letter of unsound mindcredit agreement of similar nature to this Agreement, individually or in the aggregate, in excess of the Dollar Equivalent of $200,000,000, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness, provided, however, that a written waiver of such failure by the Person to whom such Indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this clause (d) from such failure; or the maturity of such indebtedness is accelerated, provided, however, that a written waiver of such failure by the Person to whom such indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the systemThe Parent Guarantor shall repudiate, or Scalping)assert the unenforceability of the Parent Guaranty, or the Parent Guaranty shall for any reason not be in full force and effect or the Company shall repudiate, or assert the unenforceability of this Agreement;
(f) you withdraw your consent to conduct business electronically at The entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Parent Guarantor, the Company or any time by providing notice other Credit Party in accordance with this Agreementan involuntary case or proceeding under the Bankruptcy Code or any other applicable Debtor Relief Laws or (ii) a decree or order adjudging the Parent Guarantor, the Company or any other Credit Party bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Parent Guarantor, the Company or any other Credit Party under the Bankruptcy Code or any other applicable Debtor Relief Laws, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor, the Company or any other Credit Party or any substantial part of the property of the Parent Guarantor or the Company, or ordering the winding up or liquidation of the affairs of the Parent Guarantor, the Company or any other Credit Party, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of ninety (90) consecutive days;
(g) you enter into liquidation The commencement by the Parent Guarantor, the Company or bankruptcy, whether compulsorily any other Credit Party of a voluntary case or voluntarilyproceeding under the Bankruptcy Code or any other applicable Debtor Relief Laws, or a procedure is commenced against you seeking of any other case or proposing liquidation proceeding to be adjudicated bankrupt or bankruptcyinsolvent, or you are generally unable the consent by the Parent Guarantor, the Company or any other Credit Party to the entry of a decree or order for relief in respect of the Company or any other Credit Party in an involuntary case or proceeding under the Bankruptcy Code or any other applicable Debtor Relief Laws or to the commencement of a bankruptcy or insolvency case or proceeding against it, or the filing by the Parent Guarantor, the Company or any other Credit Party of a petition or answer or consent seeking reorganization or relief under any applicable Debtor Relief Laws, or the consent by the Parent Guarantor, the Company or any other Credit Party to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Parent Guarantor, the Company or any other Credit Party or of any substantial part of the property of, or the making by the Parent Guarantor, the Company or any other Credit Party of an assignment for the benefit of creditors, or the admission by the Parent Guarantor, the Company or any other Credit Party in writing of its inability to pay your its debts generally as they become due (due, or you admit so the taking of corporate action by the Parent Guarantor, the Company or any other Credit Party in writing);furtherance of any such action; or
(h) you become subject Parent Guarantor shall at any time fail, directly or indirectly, to an administration order or have a receiver or similar appointment or order are made or proceedings commenced Control and to own greater than fifty percent (50.0%) of the economic interest in respect of the issued and outstanding equity interests in the Company; then, and in any of your assets in consequence of debt;
such event, the Bank (i) we reasonably believe you have acted in an unfair may, by notice to the Company, declare the obligation of the Bank to issue or abusive manneramend the expiry, for exampleamount or language of any LOC to be terminated, but not limited towhereupon the same shall forthwith terminate, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on and/or (ii) may, by notice to the Trading Platform;
(j) you make any misrepresentation or breach of warranty Company, declare all amounts payable under this Agreement including but not limited and the other Loan Documents to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately forthwith due and payable.
23.5 If we, whereupon all such amounts shall become and be forthwith due and payable, without presentment, demand, protest, or further notice of any kind, all of which are hereby expressly waived by each Credit Party, and/or (iii) may require the Beneficiary of any LOC to draw the entire amount available to be drawn under such LOC in accordance with (and to the extent permitted by) such LOC and/or (iv) require the applicable Applicant to use best efforts to cause the Bank to be released from all its obligations under each LOC, and/or (v) exercise any and all other remedies available at law, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator equity or otherwise), we may suspend to secure, collect, enforce or freeze the Account or satisfy any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves Obligations of any of the remedies Credit Parties; provided that in the event of an actual or deemed entry of an order for an "Event relief (or comparable order under the Debtor Relief Laws of Default" in this Agreement.
23.6 Our rights a country other than the United States) of with respect to any Applicant under the Bankruptcy Code (or other applicable Debtor Relief Laws), (x) the obligation of the Bank to issue, amend, or amend the expiry, amount or language of any LOC shall automatically terminate, (y) all such amounts shall automatically become due and remedies under this Agreement payable, without presentment, demand, protest, or any notice of any kind, all of which are cumulativehereby expressly waived by each Applicant, and our exercise or waiver (z) the obligation of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure each Applicant to enforce or exercise any right provide Cash Collateral under this Agreement will not amount to a waiver or bar to enforcement of that rightSection 6.02 shall automatically become effective.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Sunpower Corp)
Events of Default and Their Effect. 23.1 Each If any of the following will constitute events (each an "Event of Default") shall occur and be continuing:
(a) you Any Applicant shall, other than as a result of administrative or technical error so long as such error is corrected within three (3) Business Days of notification to such Applicant of such error, fail to satisfy pay any material provision reimbursement obligation in respect of this Agreement any LOC Disbursement made by the Issuing Bank pursuant to an LOC, any Applicant shall fail to deposit cash collateral when and as the same shall become due and payable, or any Credit Party shall fail to pay any other amount payable by such failure continues for more than 3 Credit Party under any Loan Document, in each case within five (5) Business Days after we have given you the relevant notice of non- performancesame becomes due and payable with respect to a payment required to be made pursuant to Section 2.03 or ten (10) Business Days after the same becomes due and payable with respect to any other payment required to be made hereunder;
(b) you fail Any representation or warranty made by any Credit Party (or any of its officers or other representatives) under or in connection with any Loan Document shall prove to perform a have been incorrect in any material obligation under this Agreement respect when made or deemed to have been made and such failure inaccuracy is reasonably likely to expose us not remedied within thirty (30) days after receipt of notice to the risk of a loss applicable Credit Party and the Parent Guarantor from the Administrative Agent specifying such that it is not possible for us, acting reasonably, to give you notice of non-performanceinaccuracy;
(c) you Any Credit Party shall fail to provide us with perform or observe any information term, covenant, or agreement contained herein on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after written notice required pursuant thereof shall have been given to this Agreement the Company by the Administrative Agent or provide falseany Bank, incomplete except where such default cannot be reasonably cured within 30 days but can be cured within 60 days, the Credit Party has (i) during such 30-day period commenced and is diligently proceeding to cure the same and (ii) such default is cured within 60 days after the earlier of becoming aware of such failure and receipt of notice to the applicable Credit Party and the Parent Guarantor from the Administrative Agent or misleading informationthe applicable Bank specifying such failure;
(d) you die The Parent Guarantor shall fail to pay (i) any indebtedness for borrowed money pursuant to a loan agreement, or become (ii) any noncontingent payment obligation pursuant to a letter of unsound mindcredit agreement of similar nature to this Agreement, in either case individually or in the aggregate, in excess of the Dollar Equivalent of $200,000,000, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness or obligation, provided, however, that a written waiver of such failure by the Person to whom such indebtedness or obligation is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure; or the maturity of such indebtedness or obligation is accelerated, provided, however, that a written waiver of such failure by the Person to whom such indebtedness or obligation is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the systemThe Parent Guarantor shall repudiate, or Scalping)assert the unenforceability of the Parent Guaranty, or the Parent Guaranty shall for any reason not be in full force and effect or the Company shall repudiate, or assert the unenforceability of this Agreement;
(f) you withdraw your consent to conduct business electronically at The entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Parent Guarantor, the Company or any time by providing notice other Credit Party in accordance with this Agreement;an involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Parent Guarantor, the Company or any other Credit Party bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Parent Guarantor, the Company or any other Credit Party under any applicable United States federal, state, or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor, the Company or any other Credit Party or any substantial part of the property of the Parent Guarantor or the Company, or ordering the winding up or liquidation of the affairs of the Parent Guarantor, the Company or any other Credit Party, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of ninety (90) consecutive days; or
(g) you enter into liquidation The commencement by the Parent Guarantor, the Company or any other Credit Party of a voluntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, whether compulsorily insolvency, reorganization or voluntarilyother similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Parent Guarantor, the Company or any other Credit Party to the entry of a procedure is commenced against you seeking decree or proposing liquidation order for relief in respect of the Company or any other Credit Party in an involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or you are generally unable other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by the Parent Guarantor, the Company or any other Credit Party of a petition or answer or consent seeking reorganization or relief under any applicable United States federal, state, or foreign law, or the consent by the Parent Guarantor, the Company or any other Credit Party to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Parent Guarantor, the Company or any other Credit Party or of any substantial part of the property of, or the making by the Parent Guarantor, the Company or any other Credit Party of an assignment for the benefit of creditors, or the admission by the Parent Guarantor, the Company or any other Credit Party in writing of its inability to pay your its debts generally as they become due (due, or you admit so the taking of corporate action by the Parent Guarantor, the Company or any other Credit Party in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect furtherance of any of your assets such action; then, and in consequence of debt;
any such event, the Administrative Agent (i) we reasonably believe you have acted in an unfair may, and at the request of the Required Banks shall, by notice to the Company, declare the obligation of the Issuing Bank to issue or abusive manneramend the expiry, for exampleamount or language of any LOC to be terminated, but not limited towhereupon the same shall forthwith terminate, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on and/or (ii) may, and at the Trading Platform;
(j) you make any misrepresentation or breach request of warranty the Required Banks shall, by notice to the Company, declare all amounts payable under this Agreement including but not limited and the other Loan Documents to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately forthwith due and payable.
23.5 If we, in our sole discretionwhereupon all such amounts shall become and be forthwith due and payable, believe that your Account has been involved in any fraud or crime or violation of laws or regulationswithout presentment, demand, protest, or has been accessed unlawfullyfurther notice of any kind, or is otherwise involved in any suspicious activity all of which are hereby expressly waived by each Credit Party, and/or (whether victim or perpetrator or otherwise), we iii) may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positionsrequire, or may avail ourselves direct the Issuing Bank to require, the Beneficiary of any LOC to draw the entire amount available to be drawn under such LOC in accordance with (and to the extent permitted by) such LOC and/or (iv) require the applicable Applicant to use best efforts to cause the Issuing Bank to be released from all its obligations under each LOC, and/or (v) exercise any and all other remedies available at law, in equity or otherwise, to secure, collect, enforce or satisfy any Obligations of any of the remedies Credit Parties; provided that in the event of an actual or deemed entry of an order for an "Event relief with respect to any Applicant under the Bankruptcy Law, (x) the obligation of Default" in this Agreement.
23.6 Our rights the Issuing Bank to issue, amend, or amend the expiry, amount or language of any LOC shall automatically terminate, (y) all such amounts shall automatically become due and remedies under this Agreement payable, without presentment, demand, protest, or any notice of any kind, all of which are cumulativehereby expressly waived by each Applicant, and our exercise or waiver (z) the obligation of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure each Applicant to enforce or exercise any right provide cash collateral under this Agreement will not amount to a waiver or bar to enforcement of that rightSection 6.02 shall automatically become effective.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Sunpower Corp)
Events of Default and Their Effect. 23.1 19.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performancenonperformance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the system, or Scalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcy, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1warranty; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2out.
23.2 19.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable.
23.5 19.3 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 19.4 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 1 contract
Samples: Terms of Business
Events of Default and Their Effect. 23.1 Each If any of the following will constitute events (each an "“Event of Default"”) shall occur and be continuing:
(a) you Any Applicant shall, other than as a result of administrative or technical error so long as such error is corrected within three (3) Business Days of notification to such Applicant of such error, fail to satisfy pay any material provision reimbursement obligation in respect of this Agreement any LOC Disbursement made by the Bank pursuant to an LOC, any Applicant shall fail to deposit cash collateral when and as the same shall become due and payable, or any Credit Party shall fail to pay any other amount payable by such failure continues for more than 3 Credit Party under any Loan Document, in each case within five (5) Business Days after we have given you the relevant notice of non- performancesame becomes due and payable with respect to a payment required to be made pursuant to Section 2.03 or ten (10) Business Days after the same becomes due and payable with respect to any other payment required to be made hereunder;
(b) you fail Any representation or warranty made by any Credit Party (or any of its officers or other representatives) under or in connection with any Loan Document shall prove to perform a have been incorrect in any material obligation under this Agreement respect when made or deemed to have been made and such failure inaccuracy is reasonably likely to expose us not remedied within thirty (30) days after receipt of notice to the risk of a loss applicable Credit Party and the Parent Guarantor from the Bank specifying such that it is not possible for us, acting reasonably, to give you notice of non-performanceinaccuracy;
(c) you Any Credit Party shall fail to provide us with perform or observe any information term, covenant, or agreement contained herein on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after written notice required pursuant thereof shall have been given to this Agreement or provide falsethe Company by the Bank, incomplete or misleading informationexcept where such default cannot be reasonably cured within 30 days but can be cured within 60 days, the Credit Party has (i) during such 30-day period commenced and is diligently proceeding to cure the same and (ii) such default is cured within 60 days after the earlier of becoming aware of such failure and receipt of notice to the applicable Credit Party and the Parent Guarantor from the Bank specifying such failure;
(d) you die The Parent Guarantor shall fail to pay any indebtedness for borrowed money pursuant to a loan agreement or become noncontingent payment obligation pursuant to a letter of unsound mindcredit agreement of similar nature to this Agreement, individually or in the aggregate, in excess of the Dollar Equivalent of $200,000,000, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness, provided, however, that a written waiver of such failure by the Person to whom such Indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure; or the maturity of such indebtedness is accelerated, provided, however, that a written waiver of such failure by the Person to whom such indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the systemThe Parent Guarantor shall repudiate, or Scalping)assert the unenforceability of the Parent Guaranty, or the Parent Guaranty shall for any reason not be in full force and effect or the Company shall repudiate, or assert the unenforceability of this Agreement;
(f) you withdraw your consent to conduct business electronically at The entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Parent Guarantor, the Company or any time by providing notice other Credit Party in accordance with this Agreement;an involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Parent Guarantor, the Company or any other Credit Party bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Parent Guarantor, the Company or any other Credit Party under any applicable United States federal, state, or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor, the Company or any other Credit Party or any substantial part of the property of the Parent Guarantor or the Company, or ordering the winding up or liquidation of the affairs of the Parent Guarantor, the Company or any other Credit Party, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of ninety (90) consecutive days; or
(g) you enter into liquidation The commencement by the Parent Guarantor, the Company or any other Credit Party of a voluntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, whether compulsorily insolvency, reorganization or voluntarilyother similar law or of any other case or proceeding to be adjudicated the Bankrupt or insolvent, or the consent by the Parent Guarantor, the Company or any other Credit Party to the entry of a procedure is commenced against you seeking decree or proposing liquidation order for relief in respect of the Company or any other Credit Party in an involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or you are generally unable other similar law or to the commencement of the Bankruptcy or insolvency case or proceeding against it, or the filing by the Parent Guarantor, the Company or any other Credit Party of a petition or answer or consent seeking reorganization or relief under any applicable United States federal, state, or foreign law, or the consent by the Parent Guarantor, the Company or any other Credit Party to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Parent Guarantor, the Company or any other Credit Party or of any substantial part of the property of, or the making by the Parent Guarantor, the Company or any other Credit Party of an assignment for the benefit of creditors, or the admission by the Parent Guarantor, the Company or any other Credit Party in writing of its inability to pay your its debts generally as they become due (due, or you admit so the taking of corporate action by the Parent Guarantor, the Company or any other Credit Party in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect furtherance of any of your assets such action; then, and in consequence of debt;
any such event, the Bank (i) we reasonably believe you have acted in an unfair may, by notice to the Company, declare the obligation of the Bank to issue or abusive manneramend the expiry, for exampleamount or language of any LOC to be terminated, but not limited towhereupon the same shall forthwith terminate, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on and/or (ii) may, by notice to the Trading Platform;
(j) you make any misrepresentation or breach of warranty Company, declare all amounts payable under this Agreement including but not limited and the other Loan Documents to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately forthwith due and payable.
23.5 If we, whereupon all such amounts shall become and be forthwith due and payable, without presentment, demand, protest, or further notice of any kind, all of which are hereby expressly waived by each Credit Party, and/or (iii) may require the Beneficiary of any LOC to draw the entire amount available to be drawn under such LOC in accordance with (and to the extent permitted by) such LOC and/or (iv) require the applicable Applicant to use best efforts to cause the Bank to be released from all its obligations under each LOC, and/or (v) exercise any and all other remedies available at law, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator equity or otherwise), we may suspend to secure, collect, enforce or freeze the Account or satisfy any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves Obligations of any of the remedies Credit Parties; provided that in the event of an actual or deemed entry of an order for an "Event relief with respect to any Applicant under the Bankruptcy Law, (x) the obligation of Default" in this Agreement.
23.6 Our rights the Bank to issue, amend, or amend the expiry, amount or language of any LOC shall automatically terminate, (y) all such amounts shall automatically become due and remedies under this Agreement payable, without presentment, demand, protest, or any notice of any kind, all of which are cumulativehereby expressly waived by each Applicant, and our exercise or waiver (z) the obligation of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure each Applicant to enforce or exercise any right provide cash collateral under this Agreement will not amount to a waiver or bar to enforcement of that rightSection 6.02 shall automatically become effective.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Sunpower Corp)
Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performancenonperformance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abusemarket abuse, gaming the system, or Scalpingscalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcybankruptcy within the jurisdiction of the United Kingdom, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in any jurisdiction outside the United Kingdom in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;; or
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accountsof your Accounts held with us; or
(d) refuse to open new Positions, landing accounts Positions or trading accounts Accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balancesloss, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 1 contract
Samples: Terms of Business
Events of Default and Their Effect. 23.1 Each If any of the following will constitute events (each an "“Event of Default"”) shall occur and be continuing:
(a) you Any Applicant shall, other than as a result of administrative or technical error so long as such error is corrected within three (3) Business Days of notification to such Applicant of such error, fail to satisfy pay any material provision reimbursement obligation in respect of this Agreement any LOC Disbursement made by the Bank pursuant to an LOC, any Applicant shall fail to deposit cash collateral when and as the same shall become due and payable, or any Credit Party shall fail to pay any other amount payable by such failure continues for more than 3 Credit Party under any Loan Document, in each case within five (5) Business Days after we have given you the relevant notice of non- performancesame becomes due and payable with respect to a payment required to be made pursuant to Section 2.03 or ten (10) Business Days after the same becomes due and payable with respect to any other payment required to be made hereunder;
(b) you fail Any representation or warranty made by any Credit Party (or any of its officers or other representatives) under or in connection with any Loan Document shall prove to perform a have been incorrect in any material obligation under this Agreement respect when made or deemed to have been made and such failure inaccuracy is reasonably likely to expose us not remedied within thirty (30) days after receipt of notice to the risk of a loss applicable Credit Party and the Parent Guarantor from the Bank specifying such that it is not possible for us, acting reasonably, to give you notice of non-performanceinaccuracy;
(c) you Any Credit Party shall fail to provide us with perform or observe any information term, covenant, or agreement contained herein (other than those specified in clause (a) and (b) above) on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after written notice required pursuant thereof shall have been given to this Agreement or provide falsethe Company by the Bank, incomplete or misleading informationexcept where such default cannot be reasonably cured within 30 days but can be cured within 60 days, the Credit Party has (i) during such 30-day period commenced and is diligently proceeding to cure the same and (ii) such default is cured within 60 days after the earlier of becoming aware of such failure and receipt of notice to the applicable Credit Party and the Parent Guarantor from the Bank specifying such failure;
(d) you die The Parent Guarantor shall fail to pay any indebtedness for borrowed money pursuant to a loan agreement or become noncontingent payment obligation pursuant to a letter of unsound mindcredit agreement of similar nature to this Agreement, individually or in the aggregate, in excess of the Dollar Equivalent of $200,000,000, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness, provided, however, that a written waiver of such failure by the Person to whom such Indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure; or the maturity of such indebtedness is accelerated, provided, however, that a written waiver of such failure by the Person to whom such indebtedness is owed shall be a written waiver of the Event of Default resulting pursuant to this subclause from such failure;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the systemThe Parent Guarantor shall repudiate, or Scalping)assert the unenforceability of the Parent Guaranty, or the Parent Guaranty shall for any reason not be in full force and effect or the Company shall repudiate, or assert the unenforceability of this Agreement;
(f) you withdraw your consent to conduct business electronically at The entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Parent Guarantor, the Company or any time by providing notice other Credit Party in accordance with this Agreementan involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Parent Guarantor, the Company or any other Credit Party bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Parent Guarantor, the Company or any other Credit Party under any applicable United States federal, state, or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor, the Company or any other Credit Party or any substantial part of the property of the Parent Guarantor or the Company, or ordering the winding up or liquidation of the affairs of the Parent Guarantor, the Company or any other Credit Party, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of ninety (90) consecutive days;
(g) you enter into liquidation The commencement by the Parent Guarantor, the Company or any other Credit Party of a voluntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, whether compulsorily insolvency, reorganization or voluntarilyother similar law or of any other case or proceeding to be adjudicated the Bankrupt or insolvent, or the consent by the Parent Guarantor, the Company or any other Credit Party to the entry of a procedure is commenced against you seeking decree or proposing liquidation order for relief in respect of the Company or any other Credit Party in an involuntary case or proceeding under any applicable United States federal, state, or foreign bankruptcy, insolvency, reorganization, or you are generally unable other similar law or to the commencement of the Bankruptcy or insolvency case or proceeding against it, or the filing by the Parent Guarantor, the Company or any other Credit Party of a petition or answer or consent seeking reorganization or relief under any applicable United States federal, state, or foreign law, or the consent by the Parent Guarantor, the Company or any other Credit Party to the filing of such petition or the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Parent Guarantor, the Company or any other Credit Party or of any substantial part of the property of, or the making by the Parent Guarantor, the Company or any other Credit Party of an assignment for the benefit of creditors, or the admission by the Parent Guarantor, the Company or any other Credit Party in writing of its inability to pay your its debts generally as they become due (due, or you admit so the taking of corporate action by the Parent Guarantor, the Company or any other Credit Party in writing);furtherance of any such action; or
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced A Change in respect of Control shall occur; then, and in any of your assets in consequence of debt;
such event, the Bank (i) we reasonably believe you have acted in an unfair may, by notice to the Company, declare the obligation of the Bank to issue or abusive manneramend the expiry, for exampleamount or language of any LOC to be terminated, but not limited towhereupon the same shall forthwith terminate, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on and/or (ii) may, by notice to the Trading Platform;
(j) you make any misrepresentation or breach of warranty Company, declare all amounts payable under this Agreement including but not limited and the other Loan Documents to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately forthwith due and payable.
23.5 If we, whereupon all such amounts shall become and be forthwith due and payable, without presentment, demand, protest, or further notice of any kind, all of which are hereby expressly waived by each Credit Party, and/or (iii) may require the Beneficiary of any LOC to draw the entire amount available to be drawn under such LOC in accordance with (and to the extent permitted by) such LOC and/or (iv) require the applicable Applicant to use best efforts to cause the Bank to be released from all its obligations under each LOC, and/or (v) exercise any and all other remedies available at law, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator equity or otherwise), we may suspend to secure, collect, enforce or freeze the Account or satisfy any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves Obligations of any of the remedies Credit Parties; provided that in the event of an actual or deemed entry of an order for an "Event relief with respect to any Applicant under the Bankruptcy Law, (x) the obligation of Default" in this Agreement.
23.6 Our rights the Bank to issue, amend, or amend the expiry, amount or language of any LOC shall automatically terminate, (y) all such amounts shall automatically become due and remedies under this Agreement payable, without presentment, demand, protest, or any notice of any kind, all of which are cumulativehereby expressly waived by each Applicant, and our exercise or waiver (z) the obligation of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure each Applicant to enforce or exercise any right provide cash collateral under this Agreement will not amount to a waiver or bar to enforcement of that rightSection 6.02 shall automatically become effective.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Sunpower Corp)
Events of Default and Their Effect. 23.1 19.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performancenonperformance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the system, or Scalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcy, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable to take any action set out in paragraph 23.2.
23.2 19.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable.
23.5 19.3 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 19.4 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 1 contract
Samples: Terms of Business
Events of Default and Their Effect. 23.1 Each of the following will constitute an "Event of Default":
(a) you fail to satisfy any material provision of this Agreement and such failure continues for more than 3 Business Days after we have given you the relevant notice of non- performance;
(b) you fail to perform a material obligation under this Agreement and such failure is reasonably likely to expose us to the risk of a loss such that it is not possible for us, acting reasonably, to give you notice of non-performance;
(c) you fail to provide us with any information or notice required pursuant to this Agreement or provide false, incomplete or misleading information;
(d) you die or become of unsound mind;
(e) we consider it reasonably necessary to prevent what we reasonably consider to be or might be a violation of any Applicable Law (including but not limited to, Market Abuse, gaming the system, or Scalping);
(f) you withdraw your consent to conduct business electronically at any time by providing notice in accordance with this Agreement;
(g) you enter into liquidation or bankruptcy, whether compulsorily or voluntarily, or a procedure is commenced against you seeking or proposing liquidation or bankruptcy, or you are generally unable to pay your debts as they become due (or you admit so in writing);
(h) you become subject to an administration order or have a receiver or similar appointment or order are made or proceedings commenced in respect of any of your assets in consequence of debt;
(i) we reasonably believe you have acted in an unfair or abusive manner, for example, but not limited to, using any ultra-high speed trading; automated or mass data entry system; or Scalping with or on the Trading Platform;
(j) you make any misrepresentation or breach of warranty under this Agreement including but not limited to any misrepresentation or breach of warranty under paragraph 27.1; or
(k) we have reason to believe that any of the foregoing is likely to occur imminently or any other circumstances where we reasonably believe that it is necessary or desirable ordesirable to take any action set out in paragraph 23.2.
23.2 If an Event of Default occurs, unless otherwise prescribed by Applicable Law, we may, in our absolute discretion, at any time and without prior notice, take one or more of the following steps:
(a) close out all or any of your Open Positions at current quotes;
(b) debit (or credit) your Account for amounts which are due to us (or you);
(c) close your Account, including any or all landing or trading accounts; or
(d) refuse to open new Positions, landing accounts or trading accounts for you.
23.3 In the case of an Event of Default under paragraph 23.1(f), any communications between us and you during the period before the withdrawal of your consent to do business electronically, will be valid and binding on both you and us.
23.4 In the case of an Event of Default under paragraph 23.1(j), you agree to accept the risk and liability for any resulting financial loss and any negative balances, on a Transaction, which will become immediately due and payable.
23.5 If we, in our sole discretion, believe that your Account has been involved in any fraud or crime or violation of laws or regulations, or has been accessed unlawfully, or is otherwise involved in any suspicious activity (whether victim or perpetrator or otherwise), we may suspend or freeze the Account or any privileges of the Account, may freeze or liquidate funds or Positions, or may avail ourselves of any of the remedies for an "Event of Default" in this Agreement.
23.6 Our rights and remedies under this Agreement are cumulative, and our exercise or waiver of any right or remedy will not preclude or inhibit the exercise of any additional right or remedy. Our failure to enforce or exercise any right under this Agreement will not amount to a waiver or bar to enforcement of that right.
Appears in 1 contract
Samples: Retail Clients Terms of Business
