Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes of this Agreement: (i) the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor; (ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor; (iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days; (iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement; (v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity; (vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and (vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Support Agreement, Credit Support Agreement (Sunpower Corp)
Trigger Events. Each For purposes of this Section 4.04 (and subject in all respects to Section 4.13), rights, options or warrants distributed by the Issuer to all holders of the following Issuer Class A Shares entitling them to subscribe for or purchase shares of the Issuer’s Capital Stock, including Issuer Class A Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events occurring as of or after the Effective Date shall constitute a (“Trigger Event” for purposes of this Agreement:”):
(i) the Company defaults are deemed to be transferred with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand thereforIssuer Class A Shares;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;are not exercisable; and
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained are also issued in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance respect of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer future issuances of the Bank’s waiver Issuer Class A Shares, shall be deemed not to have been distributed for purposes of this Section 4.04 (and no adjustment to the Guarantor’s Authorized Officer, on behalf Conversion Rate under this Section 4.04 will be required) until the occurrence of the Guarantorearliest Trigger Event, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company whereupon such rights, options or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event warrants shall be deemed to have occurred only been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 4.04. If any such rights, options or warrants, including any such existing rights, options or warrants distributed prior to the date of the Note Purchase Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding sentence with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 4.04 was made, (1) in the case of any such rights, options or warrants that shall all have occurred only been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (A) the Conversion Rate shall be readjusted as if such event rights, options or occurrence could reasonably warrants had not been issued and (B) the Conversion Rate shall then again be expected readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Issuer Class A Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Issuer Class A Shares as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have a Material Adverse Effectexpired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
Appears in 2 contracts
Samples: Convertible Note Purchase Agreement (DiamondHead Holdings Corp.), Convertible Note Purchase Agreement (DiamondHead Holdings Corp.)
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes immediately upon Apple giving GTAT notice of this Agreementthe occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(ia) if Apple has given GTAT notice of one or more breaches under the Company defaults with respect to SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (A) its reimbursement obligations under Section 3(bUS$100,000,000) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand thereformore;
(iib) any representation breach by GTAT of Section 2 or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance 4 of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(vc) termination of the Company or any of its Subsidiaries defaults SOW by Apple for Cause (as defined in the observance SOW);
(d) any indebtedness of GTAT or performance Supplier Affiliate in excess of any other agreement, term or condition contained One Hundred Million US Dollars (US$100,000,000) (“Material Debt”) in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default aggregate is to causeaccelerated, or permit the holder (i.e., creditor) or holders of such Indebtedness thereof Material Debt or any trustee or agent on its or their behalf, pursuant to causetheir rights under the applicable debt instrument, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to its stated date their maturity because the stock of maturityGT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(vie) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the Company MDSA or SOW for any or no reason;
(f) if GTAT or any of its Subsidiaries (A) applies for Supplier Affiliate is subject to an Insolvency Proceeding or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) if an Insolvency Proceeding is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its filed against GTAT or any of its creditorsSupplier Affiliate and, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days of such commencementdays;
(g) for the appointment of a receiver, trustee, liquidator if any Transaction Document shall have not been executed or custodian becomes invalid or unenforceable in its entirety;
(h) if as of the Companylast day of any fiscal quarter of GTAT, or [***];
(i) if as of all or the last day of any fiscal quarter of GTAT, [***];
(j) if the Projections show a substantial part Cash Balance of its property or any less than [***] at the end of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries following have occurred at the end of any fiscal quarter of GTAT and both are continuing forty-five (45) days following the end of that fiscal quarter:
(i) the Consolidated Cash Balance is below Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at the end of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectfollowing fiscal quarter; or
(iii) Consolidated DPO is more than 70 days.
Appears in 1 contract
Samples: Prepayment Agreement (GT Advanced Technologies Inc.)
Trigger Events. Each of the following events occurring as of or after the Effective Date If any Trigger Event shall constitute a “Trigger Event” for purposes of this Agreementhave occurred and be continuing:
(ia) the Company defaults Collateral Agent shall have the rights and the obligations with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period more particularly provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Intercreditor Agreement;
(vb) the Company Pledgor shall, at the request of the Collateral Agent, assemble the Collateral owned by it at such place or places, reasonably convenient to both the Collateral Agent and the Pledgor, designated in its request;
(c) the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by applicable law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right);
(d) the Collateral Agent may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms, of any of the Collateral;
(e) the Collateral Agent in its discretion may, in its name or in the name of the Pledgor or otherwise, demand, sue xxx, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so; and
(f) the Collateral Agent may, upon ten Business Days' prior notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Collateral Agent, the other Secured Parties or any of its Subsidiaries defaults in their respective agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the observance Collateral Agent deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any other agreement, term such disposition or condition contained in any bond, debenture, note of the time or other evidence of Indebtedness place thereof (other than any Guaranteed Facilityexcept such notice as is required above or by applicable statute and cannot be waived), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company Collateral Agent or any other Secured Party or anyone else may be the purchaser, lessee, assignee or recipient of its Subsidiaries any or all of the Collateral so disposed of at any public sale (A) applies for or consents or, to the appointment maximum extent permitted by applicable law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of a receiverwhatsoever kind, trusteeincluding any right or equity of redemption (statutory or otherwise), liquidator of the Pledgor, any such demand, notice and right or custodian equity being hereby expressly waived and released to the maximum extent permitted by applicable law. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. The proceeds of itself each collection, sale or other disposition under this Section 5.5 shall be applied in accordance with Section 5.8 hereof. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or a substantial any part of its property, (B) is unable, or admits in writing its inabilitythe Collateral, to pay its debts generally as they maturelimit purchasers to those who will agree, (C) makes among other things, to acquire the Collateral for their own account, for investment and not with a general assignment for view to the benefit of its distribution or resale thereof. The Pledgor acknowledges that any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term private sale may be defined or interpreted under any applicable statute)at prices and on terms less favorable to the Collateral Agent than those obtainable through a public sale without such restrictions, (F) commences a voluntary case or other proceeding seeking liquidationand, reorganization or other relief with respect to itself or its debts under any bankruptcynotwithstanding such circumstances, insolvency or other similar law now or hereafter in effect or consent to agrees that any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event private sale shall be deemed to have occurred only if such event or occurrence could reasonably be expected been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to have a Material Adverse Effect; and
(vii) proceedings are commenced (engage in public sales and such proceedings are not dismissed within sixty (60) days no obligation to delay the sale of such commencement) any Collateral for the appointment period of a receiver, trustee, liquidator or custodian of time necessary to permit the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect respective issuer thereof to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectregister it for public sale.
Appears in 1 contract
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes immediately upon Apple giving GTAT notice of this Agreementthe occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(ia) if Apple has given GTAT notice of one or more breaches under the Company defaults with respect to SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (A) its reimbursement obligations under Section 3(bUS$100,000,000) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand thereformore;
(iib) any representation breach by GTAT of Section 2 or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance 4 of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(vc) termination of the Company or any of its Subsidiaries defaults SOW by Apple for Cause (as defined in the observance SOW);
(d) any indebtedness of GTAT or performance Supplier Affiliate in excess of any other agreement, term or condition contained One Hundred Million US Dollars (US$100,000,000) (“Material Debt”) in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default aggregate is to causeaccelerated, or permit the holder (i.e., creditor) or holders of such Indebtedness thereof Material Debt or any trustee or agent on its or their behalf, pursuant to causetheir rights under the applicable debt instrument, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to its stated date their maturity because the stock of maturityGT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(vie) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the Company MDSA or SOW for any or no reason; [***] Portions of this exhibit have been redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission
(f) if GTAT or any of its Subsidiaries (A) applies for Supplier Affiliate is subject to an Insolvency Proceeding or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) if an Insolvency Proceeding is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its filed against GTAT or any of its creditorsSupplier Affiliate and, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days of such commencementdays;
(g) for the appointment of a receiver, trustee, liquidator if any Transaction Document shall have not been executed or custodian becomes invalid or unenforceable in its entirety;
(h) if as of the Companylast day of any fiscal quarter of GTAT, or [***];
(i) if as of all or the last day of any fiscal quarter of GTAT, [***];
(j) if the Projections show a substantial part Cash Balance of its property or any less than [***] at the end of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries following have occurred at the end of any fiscal quarter of GTAT and both are continuing forty-five (45) days following the end of that fiscal quarter:
(i) the Consolidated Cash Balance is below Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at the end of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectfollowing fiscal quarter; or
(iii) Consolidated DPO is more than 70 days.
Appears in 1 contract
Samples: Prepayment Agreement
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes immediately upon Apple giving GTAT notice of this Agreementthe occurrence thereof, which notice may consist of any written notice to GTAT, including by electronic mail:
(ia) if Apple has given GTAT notice of one or more breaches under the Company defaults with respect to SOW or the MDSA for which the cumulative liquidated damages for such breach(es) is One Hundred Million US Dollars (A) its reimbursement obligations under Section 3(bUS$100,000,000) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand thereformore;
(iib) any representation breach by GTAT of Section 2 or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance 4 of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(vc) termination of the Company or any of its Subsidiaries defaults SOW by Apple for Cause (as defined in the observance SOW);
(d) any indebtedness of GTAT or performance Supplier Affiliate in excess of any other agreement, term or condition contained Xxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$100,000,000) (“Material Debt”) in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default aggregate is to causeaccelerated, or permit the holder (i.e., creditor) or holders of such Indebtedness thereof Material Debt or any trustee or agent on its or their behalf, pursuant to causetheir rights under the applicable debt instrument, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more cause Material Debt to become due or require the prepayment, repurchase, redemption or defeasance thereof, before its scheduled maturity, provided that if any convertible notes or bonds issued by the Consolidated Entities become redeemable prior to its stated date their maturity because the stock of maturityGT Advanced Technologies Inc. or the trading price of such notes has reached the conversion price is not a Trigger Event under this provision;
(vie) if GTAT notifies Apple in writing that it will no longer perform its material obligations under the Company MDSA or SOW for any or no reason;
(f) if GTAT or any of its Subsidiaries (A) applies for Supplier Affiliate is subject to an Insolvency Proceeding or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) if an Insolvency Proceeding is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its filed against GTAT or any of its creditorsSupplier Affiliate and, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are Insolvency Proceeding is involuntary, is not dismissed within sixty (60) days of such commencementdays;
(g) for the appointment of a receiver, trustee, liquidator if any Transaction Document shall have not been executed or custodian becomes invalid or unenforceable in its entirety;
(h) if as of the Companylast day of any fiscal quarter of GTAT, the sum of [***] and [***] was equal to or greater than [***]% of all or the cumulative Supply Commitment [***] (as described in Section 9.7.1 of the SOW) during the prior [***] period and the Consolidated Cash Balance is below [***];
(i) if as of the last day of any fiscal quarter of GTAT, the sum of [***] and [***] was less than [***]% of the cumulative Supply Commitment [***] during the prior [***] period and the Consolidated Cash Balance is below [***];
(j) if the Projections show a substantial part Cash Balance of its property or any less than [***] at the end of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any six-month period reflected in the applicable Projections;
(k) if the Consolidated DPO is more than [***]; or
(l) if two of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only following have occurred at the end of any fiscal quarter of GTAT and both are continuing forty-five (45) days following the end of that fiscal quarter: [***] Portions of this exhibit have been redacted pursuant to one or more Subsidiaries a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.
(i) the Consolidated Cash Balance is below Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Dollars (US$125,000,000);
(ii) the Projections show a Consolidated Cash Balance of less than $100 million at the end of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectfollowing fiscal quarter; or
(iii) Consolidated DPO is more than 70 days.
Appears in 1 contract
Samples: Prepayment Agreement (GT Advanced Technologies Inc.)
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute be a “Trigger Event” for purposes with respect to this Note unless the Holder otherwise consents (including without limitation any approval from the board nominee of Holder (if any) and in the event no Holder nominee is then appointed on the board, then approval from the board observer appointed by Holder (if any), and in each case, any consent by such board nominee or board observer shall be deemed to be the consent of the Holder):
(a) The Issuer fails to furnish to the Holder written notice of the occurrence and continuance of any Default or Event of Default under this AgreementNote promptly after becoming aware of such Default or Event of Default;
(b) The Issuer fails to provide the Holder with a copy of any notice of event of default provided to the Corporation or any of its Restricted Subsidiaries pursuant to the Senior Secured Note Indenture promptly after receipt of such notice;
(c) the occurrence of any of the following events:
(i) the Company defaults Issuer consolidates or merges with respect or into another Person (whether or not the Issuer is the surviving entity); provided that notwithstanding the foregoing, this Section 7 will not apply to (Ai) any Subsidiary or Affiliate consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its reimbursement obligations under Section 3(bproperties and assets to the Issuer or to another Subsidiary, (ii) any Change of Control or (Biii) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor Issuer merging with a wholly owned Subsidiary or Affiliate solely for the purpose and with the Guarantor’s written demand thereforsole effect of reincorporating the Issuer in another jurisdiction;
(ii) any representation direct or warranty made indirect incurrence or Guarantee of Indebtedness by the Company Corporation, the Issuer or its consolidated Restricted Subsidiaries other than (1) any incurrence or Guarantee of Indebtedness permitted under the Senior Secured Note Indenture (as in effect as of the Signing Date) other than Sections 4.09(a), 4.09(b)(2), 4.09(b)(4), and 4.09(b)(20) of the Senior Secured Note Indenture (as in effect as of the Signing Date), (2) any Indebtedness under any Credit Facility (as defined in the Senior Secured Note Indenture (as in effect as of the Signing Date)), including letters of credit or banker’s acceptances issued or created thereunder, in an aggregate principal amount at any one time outstanding not to exceed $75 million, (3) this Agreement Note, (4) any other promissory note issued in connection with the Purchase Agreement, (5) any indenture governing senior notes issued by the Corporation (or as an inducement to be issued by the Corporation after giving effect to any merger with any escrow entity), dated on or before [ ]2 (the “Issue Date Indenture”) and any senior notes issued thereunder, (6) to the Guarantor to enter into extent that, on a pro forma basis, immediately after the incurrence of such Indebtedness (including a pro forma application of the net proceeds therefrom) the Consolidated Leverage Ratio for the Corporation’s most recently ended four full fiscal quarters immediately preceding the date on which such additional Indebtedness is incurred would be greater than 4.5:1.0, and (7) any Guaranty is falseamendment, incorrectrestatement, incomplete amendment and restatement, supplement, refinancing, replacement, extension or misleading renewal or other modification of the Senior Secured Notes, the Senior Secured Note Indenture, the Issue Date Indenture and any senior notes issued thereunder, in each case, in any material respect when made and manner; provided, further that any such refinancing or amendment of such Senior Secured Notes (exclusive of any costs of the Company has failed to cure such misrepresentation within fifteen (15refinancing or amendment which may be incurred) days after notice thereof from does not increase the Guarantoraggregate amount of outstanding Indebtedness of the Corporation on a dollar, not multiple, basis;
(iii) the Company fails to observe Corporation makes or perform declare any Restricted Payment (as defined in clauses (i) and (ii) as set forth in the Senior Secured Note Indenture (as in effect as of the Signing Date)), other material covenant, obligation, condition or agreement contained than Restricted Payments in this Agreement the ordinary course of business and such failure continues for fifteen (15) daysfunded with the proceeds of internally generated cash flow of the Corporation and its Subsidiaries;
(iv) the Company defaults any change in the observance principal line of business or performance geographic focus of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (the Corporation other than an obligation to pay any amount investment or credit assurance in China in the payment of which is guaranteed manner contemplated by the Guarantor pursuant to a Guaranty), up to or beyond Purchase Agreement; provided that any grace period provided investment by the Corporation in China exceeding 10% of its market capitalization at the time of such investment shall require approval of the board of the Corporation which must include approval from the board nominee of Holder (if any) and in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based event no Holder nominee is then appointed on the Bank’s waiverboard, then approval from the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause board observer appointed by Holder (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;if any); 2 NTD: To be initial Issue Date.
(v) any voluntary change in tax classification or corporate form by the Company Corporation or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;Issuer; or
(vi) the Company Issuer or any Restricted Subsidiary, creates, incurs, assumes or permits to exist any Lien (as defined in the Senior Secured Note Indenture (as in effect as of the Signing Date)) on any property or asset now owned or hereafter acquired by the Corporation or any Restricted Subsidiary, other than as permitted by the Senior Secured Note Indenture (as in effect as of the Signing Date). Notwithstanding the foregoing, none of the following actions shall constitute a Trigger Event or be restricted or limited by or require any approval of the Holder (other than as set forth in Section 8(b)): (i) the Corporation and any of its controlled Affiliates entering into joint ventures, partnerships or similar arrangements and funding the same as described in Clause (D) of this paragraph, so long as each such joint venture, partnership or similar arrangement is (A) in respect of a single asset or a group of related assets (for the avoidance of doubt, a group of assets shall not be deemed to be related assets solely because they perform the same function), (B) with third Persons, (C) on an arms’-length basis, (D) funded through the issuance of equity in such joint venture, capital contributions in such joint venture and/or the incurrence of unsecured Indebtedness or Indebtedness solely secured by the assets of such joint venture and/or the equity in such joint venture, and (E) for the purpose of (1) developing or expanding assets of the Corporation and such controlled Affiliates or (2) acquiring and developing new assets and growth opportunities, (ii) the issuance of securities and capital contributions among the Corporation or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its propertyRestricted Subsidiaries, (Biii) is unable, or admits in writing its inability, to pay its debts generally as they matureany Change of Control, (Civ) makes a general assignment for the benefit of its or any of its creditorsOCB Exception, (Dv) is dissolved the issuance of securities, capital contributions or liquidatedincurrence of intercompany Indebtedness among the Corporation and any joint ventures, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case partnerships or other proceeding seeking liquidation, reorganization minority owned entities in which the Corporation or its Restricted Subsidiaries have an equity or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; andinterest.
(viid) proceedings are commenced (the Issuer defaults in payment when due and such proceedings are not dismissed within sixty (60) days payable of such commencement) for any principal, Prepayment Premium or Cash Interest due and payable on the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse EffectNotes.
Appears in 1 contract
Samples: Series a Notes and Common Share Purchase Agreement (Akumin Inc.)
Trigger Events. Each of the (i) Trigger Events. The following are trigger events occurring as of or after the Effective Date shall constitute under this Note (each, a “Trigger Event” ”): (a) Borrower fails to pay any principal, interest, fees, charges, or any other amount when due and payable hereunder; (b) Borrower fails to deliver any Conversion Shares in accordance with the terms hereof; (c) a receiver, trustee or other similar official shall be appointed over Borrower or a material part of its assets and such appointment shall remain uncontested for purposes twenty (20) days or shall not be dismissed or discharged within sixty (60) days; (d) Xxxxxxxx becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any; (e) Borrower makes a general assignment for the benefit of creditors; (f) Borrower files a petition for relief under any bankruptcy, insolvency or similar law (domestic or foreign); (g) an involuntary bankruptcy proceeding is commenced or filed against Borrower, which is not cured within sixty (60) calendar days; (h) any representation, warranty or other statement made or furnished by or on behalf of Borrower to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Agreement:
(i) the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty Note is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen or furnished; (15) days after notice thereof from the Guarantor;
(iiii) the Company occurrence of a Fundamental Transaction without prior written consent of the holder of 50% or more of the Outstanding Balance, which consent shall not be unreasonably withheld; (j) Borrower effectuates a reverse split of its Ordinary Shares without twenty (20) Trading Days prior written notice to Lender other than a reverse split of its Ordinary Shares to maintain compliance with the minimum bid price requirements of the stock market where its Ordinary Shares are listed or traded; (k) any money judgment, writ or similar process is entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $1,000,000.00, and shall remain unvacated, unbonded or unstayed for a period of twenty (20) calendar days unless otherwise consented to by Lender; (l) Borrower fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen maintain the Share Reserve (15) days;
(iv) the Company defaults as defined in the observance Securities Purchase Agreement); or performance (m) Borrower, or any affiliate of Borrower breaches any agreement, covenant or other term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay Other Agreements in any amount material respect. Notwithstanding the payment of which is guaranteed by foregoing, the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance occurrence of any other agreement, term or condition contained event specified in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(viSections 7(i) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may above shall not be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then considered a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
is cured within ten (vii10) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian Trading Days of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectthereof.
Appears in 1 contract
Trigger Events. Each (a) The occurrence of any of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes of this AgreementEvent hereunder:
(i) the Company defaults with respect Seller, the Servicer or the Depositor, as the case may be, shall fail to pay when due any amount payable by it hereunder, or under the Indenture or the Sale and Servicing Agreement, which failure shall continue for two (A2) its reimbursement obligations under Section 3(b) Business Days after receipt of notice thereof by the Seller, the Servicer or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and Depositor, as the Guarantor’s written demand thereforcase may be;
(ii) an "Event of Servicing Termination" occurs under the Sale and Servicing Agreement or an "Event of Default" occurs under the Indenture;
(iii) any representation or warranty made by the Company Seller, the Servicer or the Depositor in this Agreement or as an inducement any of the Transaction Documents proves to the Guarantor to enter into any Guaranty is false, incorrect, incomplete have been false or misleading in any material respect when made and as of the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) daysdate made;
(iv) the Company defaults in Insurer reasonably determines that the observance or performance of any agreementthe Servicer under the Sale and Servicing Agreement is not in compliance with Servicing Standards, term or condition contained in any Guaranteed Facility that would constitute an event which failure shall continue for 10 Business Days from the receipt of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed notice thereof by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this AgreementServicer;
(v) the Company Seller, the Servicer or the Depositor shall have materially breached any of its Subsidiaries defaults covenant or agreement contained herein or in the observance or performance Sale and Servicing Agreement, which breach shall continue for 10 Business Days after the receipt of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and notice thereof by the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturitybreaching party;
(vi) the Company or any occurrence of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief an Insolvency Event with respect to itself the Servicer, the Seller, the Depositor or its debts the Trust;
(vii) the security interests, as defined in the UCC, of the Indenture Trustee in the Collateral shall cease to be effective or shall cease to be a first priority perfected security interest (subject to liens permitted under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent the Transaction Documents);
(viii) the Rolling 3-Month Delinquency Rate shall exceed % with respect to any such relief or Distribution Date in the first months following the Closing Date, and % thereafter;
(ix) a Cumulative Net Loss Trigger Event shall have occurred; or
(x) subject to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against itSection 7.03 hereof, or (G) takes any action for the purpose of effecting any of the foregoing; providedTransaction Documents or any other agreement ancillary or incidental thereto shall cease to be in full force and effect.
(b) Upon the occurrence of any Trigger Event, that the Insurer, so long as no Insurer Default has occurred or is continuing, may:
(i) inform the Indenture Trustee, the Owner Trustee and each Rating Agency in writing or by facsimile transmission of the occurrence of any Trigger Event and of any other information the Insurer may have with respect to the performance of the Servicer;
(ii) instruct the Owner Trustee in writing or by facsimile transmission to deliver a notice of termination of all the rights and obligations of the Servicer to the Servicer and appoint a successor Servicer as designated by the Insurer, in accordance with the Sale and Servicing Agreement;
(iii) instruct the Servicer, the Owner Trustee, the Indenture Trustee and the successor Servicer, if any, in writing or by facsimile transmission to intercept all payments made under the Receivables by Obligors and redirect such payments directly to the Collection Account;
(iv) receive delivery from the Servicer to the Insurer or direct delivery by the Servicer to the successor Servicer designated by the Insurer, of the Receivable Files and all data and material necessary for the immediate servicing and collection of the Receivables by the Insurer or the successor Servicer designated by the Insurer;
(v) instruct the Indenture Trustee and/or the Trust to amend title documents and do such other acts to the extent that any of necessary to perfect the foregoing applies only to one or more Subsidiaries of Trust's security interest in the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse EffectFinanced Vehicles; and
(viivi) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for cause the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect Required Reserve Account Amount to be equal to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.Policy Amount. ARTICLE VII
Appears in 1 contract
Samples: Insurance and Reimbursement Agreement (Pooled Auto Securities Shelf LLC)
Trigger Events. Each For purposes of this Section 4.04 (and subject in all respects to Section 4.13), rights, options or warrants distributed by the Issuer to all holders of the following Issuer Class A Shares entitling them to subscribe for or purchase shares of the Issuer’s Capital Stock, including Issuer Class A Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events occurring as of or after the Effective Date shall constitute a (“Trigger Event” ”):
(i) are deemed to be transferred with such Issuer Class A Shares;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of the Issuer Class A Shares, shall be deemed not to have been distributed for purposes of this Agreement:
Section 4.04 (i) the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement no adjustment to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and Conversion Rate under this Section 4.04 will be required) until the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer occurrence of the Bank’s waiver and the Guarantor’s Authorized Officerearliest Trigger Event, on behalf of the Guarantorwhereupon such rights, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company options or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event warrants shall be deemed to have occurred only been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 4.04. If any such rights, options or warrants, including any such existing rights, options or warrants distributed prior to the date of the Note Purchase Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding sentence with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 4.04 was made, (1) in the case of any such rights, options or warrants that shall all have occurred only been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (A) the Conversion Rate shall be readjusted as if such event rights, options or occurrence could reasonably warrants had not been issued and (B) the Conversion Rate shall then again be expected readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Issuer Class A Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Issuer Class A Shares as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have a Material Adverse Effect.expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (United Homes Group, Inc.)
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes of this Agreement:
(i) the Company defaults with respect to (A) its reimbursement obligations under Section 3(b3(c) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Trigger Events. Each (a) The occurrence of any of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes of this AgreementEvent hereunder:
(i) the Company defaults with respect failure of any Person to deposit into the Collection Account or the Spread Account all amounts required to be deposited therein by the required deposit date and such failure could reasonably have a material adverse effect on the interests of FGIC or the Noteholders (as determined in FGIC’s sole discretion) and such failure has continued for a period of at least five (5) Business Days (A) its reimbursement obligations under Section 3(b) after notice is received by such Person from the Indenture Trustee or FGIC or (B) any other payment obligation hereunder if after discovery of such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand thereforfailure by a responsible officer of such Person;
(ii) any representation or warranty made by a Servicer Default occurs under the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made Sale and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the GuarantorServicing Agreement;
(iii) the Company fails any failure to observe or perform any other covenant or obligation of the Owner Trustee, Onyx, the Seller, the Issuer or the Servicer set forth herein, or in the Indenture or the Sale and Servicing Agreement which has not been cured within sixty (60) days (or such longer period not in excess of ninety (90) as may be reasonably necessary to remedy such failure; provided that (i) that failure is capable of remedy within ninety (90) days or less and (ii) FGIC consents in its sole discretion to that longer period) from the date of receipt by the Owner Trustee, Onyx, the Seller, the Issuer or the Servicer, as the case may be, of written notice from the Indenture Trustee or FGIC of such breach or default and such breach or default could reasonably have a material covenantadverse effect on the interests of FGIC or the Noteholders (as determined in FGIC’s sole discretion); provided, obligationhowever, condition or agreement contained in this that no Trigger Event will result from the breach by the Servicer of any covenant for which the repurchase of the affected Contracts is specified as the sole remedy pursuant to Section 3.06 of the Sale and Servicing Agreement and such failure continues for fifteen (15) daysrepurchase takes place within the time frame required by Section 3.06 of the Sale and Servicing Agreement;
(iv) the Company defaults cessation of a valid perfected first priority security interest in the observance Contracts or performance the Trust Accounts in favor of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of Indenture Trustee which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause not cured within seven (iv7) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer Business Days of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf receipt of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreementnotice thereof;
(v) a draw is made on the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;Policy; or
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; Servicer Report Date in any month prior to and including the applicable month set forth in the table below, the Cumulative Net Charge-Off Ratio exceeds the level specified for such month in such table: July 2005 – December 2005 N/A January 2006 – March 2006 2.25 % April 2006 – June 2006 2.75 % July 2006 – September 2006 3.50 % October 2006 – December 2006 4.25 % January 2007 – March 2007 5.00 % April 2007 – June 2007 6.00 % July 2007 – September 2007 6.75 % October 2007 – December 2007 7.25 % January 2008 – March 2008 7.50 % April 2007 – June 2008 7.75 % July 2008 and thereafter 8.25 % provided, however, that to the extent that occurrence of any of the foregoing applies only to one or more Subsidiaries events shall not form the basis of the Company and not to the Company itself, then a Trigger Event shall be deemed unless FGIC, upon written notice to have occurred only if each Rating Agency, has delivered to the Issuer and the Indenture Trustee written notice specifying that such event or occurrence could reasonably be expected to have constitutes a Material Adverse Effect; andTrigger Event.
(viib) proceedings are commenced Upon the occurrence of any Trigger Event, FGIC may:
(and such proceedings are not dismissed within sixty (60i) days of such commencement) for inform the appointment of a receiver, trustee, liquidator Indenture Trustee in writing or custodian by facsimile transmission of the Company, occurrence of any Trigger Event and inform the Indenture Trustee in writing or by facsimile transmission of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief information FGIC may have with respect to the Company performance of the Servicer;
(ii) instruct the Indenture Trustee in writing or any by facsimile transmission to deliver a notice of its Subsidiaries termination to the extent permitted in the Sale and Servicing Agreement of all the rights and obligations of the Servicer;
(iii) declare all indebtedness of every type or its description then owed by Onyx, the Issuer or their debts under any bankruptcythe Seller to FGIC pursuant to the Basic Documents to be immediately due and payable, insolvency or other similar law now or hereafter in effectand the same shall thereupon be immediately due and payable; provided, that to the extent however, that any such payment by Onyx, the Issuer or the Seller shall be paid in accordance with Section 4.03 of the foregoing applies only to one or more Subsidiaries Sale and Servicing Agreement; or
(iv) exercise any rights and remedies under the Basic Documents in accordance with the terms of the Company Basic Documents or direct the Indenture Trustee to exercise such remedies in accordance with the terms of the Basic Documents; or
(v) take whatever action at law or in equity as may appear necessary or desirable in its judgment to collect the amounts then due to FGIC under this Insurance Agreement or the Basic Documents or to enforce performance and not to observance of any obligation, agreement or covenant of Onyx or the Company itself, then a Trigger Event shall be deemed to have occurred only if such event Seller under this Insurance Agreement or occurrence could reasonably be expected to have a Material Adverse Effectthe Basic Documents.
Appears in 1 contract
Samples: Insurance and Reimbursement Agreement (Onyx Acceptance Owner Trust 2005-B)
Trigger Events. Each (a) On and after any date on which the Depositary Agent receives written notice from the Collateral Agent pursuant to Section 2.4(a) of the Intercreditor Agreement that a Trigger Event has occurred (the date of receipt of such notice, the "Trigger Event Day"), the Depositary Agent shall thereafter accept all notices and instructions required to be given to the Depositary Agent pursuant to the terms of this Depositary Agreement only from the Collateral Agent and not from any other Person and the Depositary Agent shall not withdraw, transfer, pay or otherwise distribute any moneys in any of the Funds except pursuant to such notices and instructions from the Collateral Agent.
(b) On the Trigger Event Date, the Depositary Agent shall (i) draw on the Debt Service Letter of Credit and deposit the proceeds thereof into the Debt Service Reserve Fund and (ii) render to the Collateral Agent an accounting of all moneys in the Funds as of the Trigger Event Date.
(c) On and after the Trigger Event Date, the Depositary Agent shall (A) distribute all money then held in the Project Revenue Fund in accordance with clauses (i) through (vii) of Section 3.1(b) (except that it shall not make any withdrawal, transfer or payment in accordance with Section 3.1(b)(i) unless the Depositary Agent receives written notice from the Collateral Agent to make such withdrawal, transfer or payment) and (B) make any or all of the following events occurring transfers and withdrawals as of or after directed in a notice from the Effective Date shall constitute a “Trigger Event” for purposes of this AgreementCollateral Agent:
(i) to the Company defaults Trustee for redemption of the Bonds Outstanding in accordance with respect Section 7.3 of the Indenture, or if the maturity of the Bonds have been accelerated pursuant to (A) its reimbursement obligations under Section 3(b) or (B) 8.2 of the Indenture, for payment of the Bonds and to each holder of Additional Permitted Debt, any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after moneys held in the due date therefor Principal Account sub-funds, the Interest Account sub-funds, the Additional Permitted Debt Fund and the Guarantor’s written demand therefor;Debt Service Reserve Fund sub-funds, in each case, allocated to the Bonds and such Additional Permitted Debt, respectively; and
(ii) to the Trustee (for redemption of the Bonds outstanding in accordance with Section 7.3 of the Indenture or, if the maturity of the Bonds has been accelerated, for payment of the Bonds), and to the other Secured Parties, ratably, any representation moneys held in the Operating Fund, the Overhaul Fund, the Pollution Control Finance Fund, the Property Tax Fund, the Partnership Distribution Fund and the Restoration Fund and any moneys remaining in the Funds described in clause (i) above after making the withdrawals specified therein; provided that if the Depositary Agent has not received a notice authorizing the Depositary Agent to distribute all amounts in the Project Revenue Fund as provided in Section 3.16(c)(A) from the Collateral Agent following the Trigger Event Date, the Depositary Agent shall distribute all moneys then held in the Project Revenue Fund in accordance with Section 3.1(b) (except that it shall not make any withdrawal, transfer or warranty made payment in accordance with Section 3.1(b)(i)) on each one-month anniversary of the Trigger Event Date until the Depositary Agent receives such notice from the Collateral Agent and thereafter the Depositary Agent shall follow the instructions set forth in such notice until notified otherwise by the Company Collateral Agent.
(d) Upon receipt from the Collateral Agent of any cash proceeds resulting from liquidation of the Collateral, the Depositary Agent shall (i) first, deposit such cash proceeds resulting from liquidation of the Collateral into the Project Revenue Fund, (ii) second, pay to each of the Collateral Agent, the Trustee, the Credit Banks (if there is no agent(s) for the Credit Banks or, if there is an agent or agents for the Credit Banks, then the agent(s) for the Credit Banks) and any other trustees or agents that are Secured Parties under the Security Documents, and the Depositary Agent, as the case may be, ratably, in this Agreement or as an inducement amount equal to the Guarantor to enter into any Guaranty is falseamounts due in respect of the Administrative Claims, incorrectthe Collateral Agent Claims, incomplete or misleading in any material respect when made the Trustee Claims and the Company has failed Depositary Agent Claims, respectively, due and payable as of the date of such distribution; provided that, prior to cure any such misrepresentation within fifteen (15) days after notice thereof from distribution to any such Persons, the Guarantor;
Depositary Agent shall have received a certificate signed by each such Person setting forth the amount payable to such Person as of the date of such distribution, including any supporting materials for such claims and (iii) third, distribute the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect balance of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness proceeds in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statuteaccordance with Section 3.16(c)(A), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Deposit and Disbursement Agreement (Panda Interfunding Corp)
Trigger Events. Each of the following events occurring as of or after the Effective Date If any Trigger Event shall constitute a “Trigger Event” for purposes of this Agreement:have occurred and be continuing: 13 -12-
(ia) the Company defaults Collateral Agent shall have the rights and the obligations with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period more particularly provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Intercreditor Agreement;
(vb) the Company Pledgor shall, at the request of the Collateral Agent, assemble the Collateral owned by it at such place or places, reasonably convenient to both the Collateral Agent and the Pledgor, designated in its request;
(c) the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the Uniform Commercial Code (whether or not said Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by applicable law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Collateral Agent were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right);
(d) the Collateral Agent may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms, of any of the Collateral;
(e) the Collateral Agent may, in its name or in the name of the Pledgor or otherwise, demand, sue xxx, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so; and
(f) the Collateral Agent may, upon ten Business Days' prior notice to the Pledgor of the time and place, with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Collateral Agent, the other Secured Parties or any of its Subsidiaries defaults in their respective agents, sell, lease, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the observance Collateral Agent deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any other agreement, term such disposition or condition contained in any bond, debenture, note of the time or other evidence of Indebtedness place thereof (other than any Guaranteed Facilityexcept such notice as is required above or by applicable statute and cannot be waived), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company Collateral Agent or any other Secured Party or anyone else may be the purchaser, lessee, assignee or recipient of its Subsidiaries any or all of the Collateral so disposed of at any public sale (A) applies for or consents or, to the appointment maximum extent permitted by applicable law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of a receiverwhatsoever kind, trusteeincluding any right or equity of redemption (statutory or otherwise), liquidator of the Pledgor, any such demand, notice and right or custodian equity being hereby expressly waived and released to the maximum extent permitted by applicable law. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned. The proceeds of itself each collection, sale or other disposition under this Section 5.5 shall be applied in accordance with Section 5.8 hereof. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or a substantial any part of its property, (B) is unable, or admits in writing its inabilitythe Collateral, to pay its debts generally as they maturelimit purchasers to those who will agree, (C) makes among other things, to acquire the Collateral for their own account, for investment and not with a general assignment for view to the benefit of its distribution or resale thereof. The Pledgor acknowledges that any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term private sale may be defined or interpreted under any applicable statute)at prices and on terms less favorable to the Collateral Agent than those obtainable through a public sale without such restrictions, (F) commences a voluntary case or other proceeding seeking liquidationand, reorganization or other relief with respect to itself or its debts under any bankruptcynotwithstanding such circumstances, insolvency or other similar law now or hereafter in effect or consent to agrees that any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event private sale shall be deemed to have occurred only if such event or occurrence could reasonably be expected been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to have a Material Adverse Effect; and
(vii) proceedings are commenced (engage in public sales and such proceedings are not dismissed within sixty (60) days no obligation to delay the sale of such commencement) any Collateral for the appointment period of a receiver, trustee, liquidator or custodian of time necessary to permit the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect respective issuer thereof to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effectregister it for public sale.
Appears in 1 contract
Trigger Events. Each (a) If, at any time, a Trigger Event with respect to any Test Month or Date of Reconciliation shall have occurred, the Beneficiaries shall have the option (such option, a “Termination Option”) to terminate any one IA Lease (such IA Lease, the “Original Selected Lease”) selected by the Beneficiaries in their sole discretion. Any such termination shall occur on the Business Day which is the first Business Day to occur on or next following the forty-fifth (45th) day (any such day, a “Termination Date”) following the delivery of written notice (a “Termination Notice”) to Lessee. In order to exercise a Termination Option (it being understood that a Termination Option may be exercised each time that a Trigger Event occurs with respect to a Test Month or a Date of Reconciliation (if no Termination Notice has previously been given for such Test Month), as the case may be, and therefore up to eight Trigger Events could occur pursuant to this Agreement), the Applicable Beneficiary must deliver a Termination Notice to Lessee (i) with respect to any Test Month with respect to which a Trigger Event occurs, within ninety (90) days after the receipt by GECC of the following events occurring as information relating to such Test Month required to be delivered to it by Lessee pursuant to Section 2.2 or (ii) with respect to any Date of or Reconciliation, within ninety (90) days after the Effective Date of Recalculation relating to such Date of Reconciliation (the last day of any such ninety (90) day period, the “Cut-off Date”). Such Termination Notice shall constitute a “reference the Test Month or the Date of Reconciliation, as the case may be, with respect to which such Trigger Event” for purposes Event occurred and shall identify the Original Selected Lease and the applicable Termination Date. Any such Termination Notice delivered by an Applicable Beneficiary shall be irrevocable, unless otherwise agreed by the Lessee.
(b) At any time during the term of this Agreement:
, the Obligors agree, immediately upon request by one or more Beneficiaries, to negotiate in good faith with such Beneficiaries and the other applicable parties an omnibus amendment agreement (an “OAA”) relating to an Original Selected Lease with a goal of entering into such OAA on or before the occurrence of the Cut-Off Date relating to the Trigger Event giving rise to a Termination Option. Any such OAA shall contemplate the termination of such Original Selected Lease on the Termination Date specified, or to be specified, in the Termination Notice delivered, or to be delivered, in connection with such Trigger Event. Each OAA entered into pursuant hereto shall be on substantially the same terms as provided for in the Existing Early Termination Agreement, except that (i) the Company defaults effective date for the early termination of the applicable Original Selected Lease shall be the Termination Date referenced in the applicable Termination Notice and (ii) other than with respect to the IA Lease identified in position 1 on Schedule II, references to make whole will be changed to breakage such that Lessee shall have no liability for breakage under § 3(c) (A) its reimbursement obligations under Section 3(bexcept following the occurrence of an event of loss) or § 15 of such Original Selected Lease.
(Bc) Each of the Obligors agrees to promptly and duly execute and deliver to the Beneficiaries such further documents and assurances and take such further action as any other payment obligation hereunder if such obligation remains unpaid thirty Beneficiary from time to time reasonably requests in order to carry out more effectively the intent of this Agreement and to establish and protect the rights created or intended to be created in favor of any such Beneficiary hereunder.
(30d) days after With respect to each ACAH Guaranty (as respectively defined in each IA Lease) provided by the due date therefor and Guarantor, although such Guaranty provides that the Guarantor’s written demand therefor;
(ii) obligations shall not be affected by any representation amendment, modification or warranty made by the Company in this Agreement other change in, or as an inducement to the Guarantor to enter into supplement to, any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe Documents (as defined in such ACAH Guaranty) or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained the Guarantor nevertheless confirms and agrees that such ACAH Guaranty shall remain in full force and effect after giving effect to this Agreement and any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effecttermination effected pursuant hereto.
Appears in 1 contract
Samples: Milestone Agreement (Flyi Inc)
Trigger Events. Each If any of the following events occurring as of or after the Effective Date shall constitute (each, a “Trigger Event”) shall occur and be continuing:
(a) Any of the following shall occur:
(i) any Transaction Party shall fail to make any payment of Interest or Fees required to be made by it hereunder or under any other Transaction Document when due hereunder or thereunder, or shall fail to deposit Collections (other than Deemed Collections) when such Collections are required to be deposited by it under a Transaction Document and such failure shall continue for two (2) Business Days after the earlier of written notice to such Transaction Party or actual knowledge of a Responsible Officer of a Transaction Party;
(ii) any Transaction Party shall fail to make any deposit of Deemed Collections required to be made by it hereunder or under any Transaction Document to which it is a party when due hereunder or thereunder, and such failure shall continue for two (2) Business Days after the earlier of written notice to such Transaction Party or a Responsible Officer of a Transaction Party having actual knowledge of such failure;
(iii) the Borrower shall fail to make any payment of principal on any Loan when due;
(iv) any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is party when due hereunder or thereunder, and such failure shall continue for ten (10) calendar days after the earlier of written notice to such Transaction Party or a Responsible Officer of a Transaction Party having actual knowledge of such failure;
(v) any Monthly Report or Supplemental Report shall not have been delivered within two (2) Business Days of the date when due; provided that if the failure to deliver such report results from a Force Majeure Event, the grace period in this clause shall be three (3) Business Days instead of two (2) Business Days;
(vi) any Interim Report shall not have been delivered within one (1) Business Day of the date when due; provided that, if the failure to deliver such report results from a Force Majeure Event, the grace period in this clause shall be two (2) Business Days instead of one (1) Business Day; or
(vii) during any calendar month more than two Interim Reports shall not have been delivered when due other than by reason of a Force Majeure Event not to exceed two weeks in duration;
(b) other than as addressed in Clauses 7.1(a) and 7.2(a), any Transaction Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Transaction Document to which such Transaction Party is a party and, if such failure relates to a Specified Provision and is capable of being remedied, such Transaction Party shall have failed to remedy such failure within fifteen (15) Business Days after the earlier of such Transaction Party receiving written notice of such failure or a Responsible Officer of a Transaction Party having actual knowledge of such failure;
(c) an “Event of Default” shall occur under, and as defined in, the Senior Credit Agreement;
(d) the Administrative Agent, on behalf of the Secured Parties, shall, for purposes any reason, fail or cease to have a valid and perfected first priority charge, security interest or pledge in the Collateral prior to all other interests, or there shall exist any Adverse Claims on such Collateral (except as arising under the Transaction Documents);
(e) a Servicer Default or Facility Termination Event shall occur;
(f) other than as permitted by Clause 11.14 (Limitations on Addition and Termination of this AgreementOriginators), any Change of Control shall occur with respect to Tribune or the Parent shall cease to own (i) directly 100% of the Equity Interests of the Borrower or (ii) directly or indirectly 100% of the Equity Interest of each Sub-Originator;
(g) the Percentage Factor exceeds the Maximum Percentage Factor on any Business Day, and such circumstance remains unremedied on the related Interim Settlement Date;
(h) as at the end of any Calculation Period, (i) the Three-Month Rolling Average Dilution Ratio-Broadcasting exceeds 3.0%, or (ii) the Three-Month Rolling Average Dilution Ratio – Publishing exceeds 7.0%;
(i) as at the end of any Calculation Period, the Three-Month Rolling Average Default Ratio exceeds 7%;
(j) as at the end of any Calculation Period, the Three-Month Rolling Average Delinquency Ratio exceeds 6.75%;
(k) at the end of any Calculation Period, (i) the Three-Month Rolling Average DSO-Broadcasting is greater than 120, or (ii) the Three-Month Rolling Average DSO – Publishing is greater than 75;
(l) any Transaction Party receives notice or becomes aware that a notice of lien has been filed against any Transaction Party under Section 430(k) of the IRC or Section 303(k) of ERISA for a failure to make a required installment or other payment to a plan to which Section 430(k) of the IRC or Section 303(k) of ERISA applies;
(m) for any Test Period:
(i) the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after Interest Coverage Ratio is less than the due date therefor and the Guarantor’s written demand thereforMinimum Interest Coverage Ratio;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to “Total Guaranteed Leverage Ratio” is more than the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;Maximum Total Guaranteed Leverage Ratio; or
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturityCapital Expenditures is greater than the Maximum Capital Expenditures;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Trigger Events. Each of the following events occurring as of or after the Effective Date shall constitute a “Trigger Event” for purposes of this Agreement:
(a) If at any time (i) Parent or AIG Life Holdings no longer meets the Company defaults with respect to (A) its reimbursement obligations under Section 3(b) Collateralization Rating Criteria or (B) any other payment obligation hereunder if such obligation remains unpaid thirty (30) days after the due date therefor and the Guarantor’s written demand therefor;
(ii) any representation or warranty made by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company AIG Life Holdings fails to observe or perform make any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to principal or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facilityinterest, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiverapplicable grace periods have lapsed, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company AIGLH Notes, and, in the case of this clause (ii), a holder (or holders acting collectively) of any of its Subsidiaries or its or their debts AIGLH Note has the right to make a claim under any bankruptcyguarantee pursuant to the Indentures or the Guarantees against the Guarantor (each of the events described in clauses (i) and (ii), insolvency a “Collateral Trigger Event”), then the Pledgors shall promptly (and in no event more than two (2) Business Days following such Collateral Trigger Event) deposit Eligible Collateral in the Collateral Account in an amount equal to the Trigger Event Collateral Amount as of the time of the Collateral Trigger Event and the Pledgors shall at all times thereafter maintain Fair Market Value of Eligible Collateral in the Collateral Account at least equal to the Trigger Event Collateral Amount; provided that if Parent and AIG Life Holdings subsequently meet the Collateralization Rating Criteria following the occurrence of a Collateral Trigger Event pursuant to clause (i), then the Pledgors may request the consent (not to be unreasonably withheld, conditioned or other similar law now or hereafter delayed) of the Guarantor to withdraw Eligible Collateral from the Collateral Account.
(b) If at any time after the Pledgors deposit funds in effect; providedconnection with a Collateral Trigger Event in accordance with this Section 3, the Guarantor determines, acting reasonably, that to the extent that any Fair Market Value of the foregoing applies only to one or more Subsidiaries Eligible Collateral is less than the Trigger Event Collateral Amount at such time, the Pledgors shall, upon demand, within five (5) Business Days deposit sufficient additional Eligible Collateral in the Collateral Account so that the Fair Market Value of the Company and not to Eligible Collateral shall at least equal the Company itself, then a Trigger Event shall be deemed to have occurred only if Collateral Amount at such event or occurrence could reasonably be expected to have a Material Adverse Effecttime.
Appears in 1 contract
Trigger Events. Each of (a) On the following events occurring as of or after date hereof, the Effective Date Warrant Certificates duly executed by the Company shall constitute be delivered to the Warrant Agent together with a “Trigger Event” for purposes of this Agreementwritten order directing the Warrant Agent to hold such Warrants Certificates until either:
(i) the Company defaults Warrant Agent has received a First Trigger Event Notice or a Second Trigger Event Notice from the Agent, upon receipt of which the Warrant Agent shall be authorized to promptly countersign and deliver one of the two Warrant Certificates in the name of each Lender to such Lender; or
(ii) the Warrant Agent has received written notice from the Agent certifying that the First Trigger Event Date and the Second Trigger Event Date have passed without the occurrence of the First Trigger Event or the Second Trigger Event, as applicable, in which case the Warrant Agent shall return the Warrant Certificates to the Company.
(b) If (i) on or before October 31, 2001 the Borrowers shall have failed to prepay the Term Loans and permanently reduce the Revolving Loan Commitment Amount (and prepay the Revolving Loans in connection with respect such reduction to the extent required pursuant to the Loan Agreement), each on a pro rata basis by a cash amount equal to $50,000,000 from the proceeds of events described in Section 6.03(a)(iii) of the Loan Agreement and (ii) on or before January 31, 2002 (the "FIRST TRIGGER EVENT DATE"), the Borrowers shall have failed to (A) its reimbursement obligations under prepay the Term Loans and permanently reduce the Revolving Loan Commitment Amount (and prepay the Revolving Loans in connection with such reduction to the extent required pursuant to the Loan Agreement), each on a pro rata basis by a cash amount equal to $50,000,000 from the proceeds of events described in Section 3(b6.03(a)(iii) or of the Loan Agreement and (B) any other payment obligation hereunder if such obligation remains unpaid thirty generate or receive an additional $50,000,000 in cash from either (301) days after the due date therefor and the Guarantor’s written demand therefor;
Net Asset Sale Proceeds or (ii2) any representation or warranty made a contribution by the Company in this Agreement or as an inducement to the Guarantor to enter into any Guaranty is false, incorrect, incomplete or misleading in any material respect when made and the Company has failed to cure such misrepresentation within fifteen (15) days after notice thereof from the Guarantor;
(iii) the Company fails to observe or perform any other material covenant, obligation, condition or agreement contained in this Agreement and such failure continues for fifteen (15) days;
(iv) the Company defaults in the observance or performance of any agreement, term or condition contained in any Guaranteed Facility that would constitute an event of default or similar event thereunder (other than an obligation to pay any amount the payment of which is guaranteed by the Guarantor pursuant to a Guaranty), up to or beyond any grace period provided in the Guaranteed Facility; provided, that if the applicable Bank waives the Company’s failure to observe or perform its obligations under a Guaranteed Facility, and if the Company wishes the Guarantor to waive the Trigger Event described in this clause (iv) based on the Bank’s waiver, then the Company shall notify the Guarantor’s Authorized Officer of the Bank’s waiver and the Guarantor’s Authorized Officer, on behalf of the Guarantor, shall promptly consider in good faith whether to waive the Trigger Event described in this clause (iv) on the basis that the Company’s default of its obligations under the Guaranteed Facility is immaterial to the Company’s performance of its obligations under this Agreement and the Guarantor’s rights under this Agreement;
(v) the Company or any of its Subsidiaries defaults in the observance or performance of any other agreement, term or condition contained in any bond, debenture, note or other evidence of Indebtedness (other than any Guaranteed Facility), and the effect of such failure or default is to cause, or permit the holder or holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of $25 million or more to become due prior to its stated date of maturity;
(vi) the Company or any of its Subsidiaries (A) applies for or consents to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (B) is unable, or admits in writing its inability, to pay its debts generally as they mature, (C) makes a general assignment for the benefit of its or any of its creditors, (D) is dissolved or liquidated, (E) becomes insolvent (as such term may be defined or interpreted under any applicable statute), (F) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (G) takes any action for the purpose of effecting any of the foregoing; provided, that to the extent that any of the foregoing applies only to one or more Subsidiaries Borrowers of the Company and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event cash proceeds consisting of additional equity or occurrence could reasonably be expected to have a Material Adverse Effect; and
(vii) proceedings are commenced (and such proceedings are not dismissed within sixty (60) days of such commencement) for the appointment of a receiver, trustee, liquidator cash from Data Holdco or custodian of the Company, or of all or a substantial part of its property or any of its Subsidiaries, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any of its Subsidiaries or its or their debts any other source, in the case of clauses (b)(ii)(B)(1) and (b)(ii)(B)(2) over and above, and in addition to, any amounts previously applied to prepay the Loans under the Loan Agreement pursuant to clauses (b)(i) and (b)(ii)(A) above (the "FIRST TRIGGER EVENT"), the Agent shall at any bankruptcy, insolvency or other similar law now or hereafter in effect; provided, that time after the First Trigger Event Date deliver a notice to the extent Warrant Agent in the form set forth in EXHIBIT B hereto (the "FIRST TRIGGER EVENT NOTICE"), indicating that any the First Trigger Event has occurred and directing the Warrant Agent to countersign and deliver one of the foregoing applies only two Warrant Certificates in the name of each Lender to such Lender.
(c) If on or before March 31, 2002 (the "SECOND TRIGGER EVENT DATE"), the Borrowers shall have failed to generate or receive an additional $50,000,000 in cash from either (1) Net Asset Sale Proceeds or (2) a contribution by the Company to one or more Borrowers of cash proceeds consisting of additional equity or cash from Data Holdco or its Subsidiaries or any other source, in the case of the Company clauses (c)(1) and not to the Company itself, then a Trigger Event shall be deemed to have occurred only if such event or occurrence could reasonably be expected to have a Material Adverse Effect.(c)
Appears in 1 contract
